International Human Rights Litigations in U.S. Courts

INTERNATIONAL HUMAN RIGHTS LITIGATION Second IN U.S. COURTS Edition Beth Stephens Judith Chomsky Jennifer Green Paul Ho...

Author: Beth Stephens | Judith Chomsky | Jennifer Green | Paul Hoffman | Michael Ratner

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INTERNATIONAL HUMAN RIGHTS LITIGATION Second IN U.S. COURTS Edition Beth Stephens Judith Chomsky Jennifer Green Paul Hoffman Michael Ratner

Library of Congress Cataloging-in-Publication Data International human rights litigation in U.S. courts / Beth Stephens . . . [et al.]. p. cm. Rev. ed. of: International human rights litigation in U.S. courts / Beth Stephens and Michael Ratner. c 1996. Includes bibliographical references and index. ISBN 978-1-57105-353-4 1. Government liability- -United States. 2. Administrative responsibility--United States. 3. Immunities of foreign states- -United States. 4. Aliens--United States 5. Torture victims- -Legal status, laws, etc.--United States. 6. United States. Alien Tort Claims Act. 7. United States. Torture Victim Protection Act of 1991. 8. International offenses. 9. Human rights. I. Stephens, Beth, 1954- II. Stephens, Beth, 1954- International human rights litigation in U.S. courts. KF1309.5.S74 2008 341.4’8--dc22 2007045945

Copyright © 2008 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers, and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Manufactured in the United States of America

Dedicated to the many friends, colleagues, and clients who have shown courage and dignity in the face of horrific brutality.

TABLE OF CONTENTS Foreword

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xvii

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xix

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xxi

The Statutory Framework

. . . . . . . . . . . . . . . . . . . . . . . .

xxix

A Note About Citations and Updates . . . . . . . . . . . . . . . . . .

xxxi

About the Authors

. . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxiii

PART I: THE ALIEN TORT STATUTE (ATS) . . . . . . Chapter 1: The Alien Tort Statute (ATS): From 1789 to Fila´rtiga, Sosa, and Beyond . . . . . . . . . . . . . Chapter 2: Understanding the Alien Tort Statute (ATS): The Analytic Framework . . . . . . . . . . . . . . . . . . Chapter 3: Plaintiffs, Defendants, and Violations in Alien Tort Statute (ATS) Suits . . . . . . . . . . . . . . . . . .

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1

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3

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27

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45

PART II: OTHER BASES FOR SUIT . . . . . . . . . . . Chapter 4: The Torture Victim Protection Act (TVPA) . . . . Chapter 5: Jurisdiction Over States: The Foreign Sovereign Immunities Act (FSIA) . . . . . . . . . . . . . . . . Chapter 6: Other Grounds for Human Rights Litigation . . . .

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73 75

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89 103

PART III: ACTIONABLE HUMAN RIGHTS VIOLATIONS . . . Chapter 7: Historical Paradigms, Modern Violations . . . . . . . . Chapter 8: Treaty Violations . . . . . . . . . . . . . . . . . . . . .

129 131 215

PART IV: PARTIES . . . . . . . . . . . . . . . . . . . . . Chapter 9: The Plaintiff: Who Can Sue? . . . . . . . . . . . . Chapter 10: Who Can Be Sued I: Personal Jurisdiction and Theories of Liability . . . . . . . . . . . . . . . . . Chapter 11: Who Can Be Sued II: U.S. and Local Government Defendants . . . . . . . . . . . . . . . . . . . . . . . Chapter 12: Who Can Be Sued III: Corporations . . . . . . . .

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229 231

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247

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281 309

PART V: DEFENSES AND IMMUNITIES . . . . . . . . . Chapter 13: Foreign Affairs and Separation of Powers . . . . . Chapter 14: Immunities . . . . . . . . . . . . . . . . . . . . . . . Chapter 15: Miscellaneous Defences . . . . . . . . . . . . . . . . Chapter 16: The Role of the Executive Branch . . . . . . . . .

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335 337 365 385 411

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vi International Human Rights Litigation in U.S. Courts

PART VI: LITIGATION . . . . Chapter 17: Preparing and Filing Chapter 18: After the Complaint Chapter 19: Discovery . . . . . Chapter 20: Proving a Case . . Chapter 21: Remedies . . . . . .

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439 441 461 473 503 523

PART VII: HISTORICAL JUSTICE CLAIMS . . . . . . . . . . Chapter 22: Historical Justice Claims . . . . . . . . . . . . . . . . .

541 543

Statutory Appendix . Table of International Table of Cases . . . Index . . . . . . . . .

551 587 591 611

. . . . . . . Documents . . . . . . . . . . . . . .

. . . . . . . . . . . a Manageable Case Is Filed and Served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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DETAILED TABLE OF CONTENTS Foreword . . . . . . . . . . . . . . . . . . . . Acknowledgments . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . A. The Fila´rtiga Precedent . . . . . . . . . B. The Impact of Human Rights Litigation C. The Global Accountability Movement . D. A Road Map to the Book . . . . . . . The Statutory Framework . . . . . . . . . . . A Note About Citations and Updates . . . . . About the Authors . . . . . . . . . . . . . . . PART I:

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. . . . . . . . . .

. . . . . . . . . .

THE ALIEN TORT STATUTE (ATS)

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. xvii . xix . xxi . xxii . xxiii . xxv . xxvii . xxix . xxxi . xxxiii

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Chapter 1: The Alien Tort Statute (ATS): From 1789 to Fila´rtiga, Sosa, and Beyond . . . . . . . . . . . . . . . . . . A. The Early History of the ATS . . . . . . . . . . . . . . B. The Fila´rtiga Case . . . . . . . . . . . . . . . . . . . . . C. From Fila´rtiga to Sosa . . . . . . . . . . . . . . . . . . . D. Sosa v. Alvarez-Machain . . . . . . . . . . . . . . . . . . E. Post-Sosa Cases and the Current State of the ATS . . Chapter 2: Understanding the Alien Tort Statute (ATS): Analytic Framework . . . . . . . . . . . . . . . . . . . . . . A. Establishing Subject Matter Jurisdiction over an ATS Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Source of the Cause of Action in an ATS Case . C. Choice of Law . . . . . . . . . . . . . . . . . . . . . . . D. Constitutionality . . . . . . . . . . . . . . . . . . . . . . . E. Extraterritoriality . . . . . . . . . . . . . . . . . . . . . .

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3 3 7 12 18 21

The . . . .

27

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28 32 36 41 42

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Chapter 3: Plaintiffs, Defendants, and Violations in Alien Tort Statute (ATS) Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Plaintiffs and Defendants in ATS Cases . . . . . . . . . . . . . 1. Who Can Sue . . . . . . . . . . . . . . . . . . . . . . . . 2. Who Can Be Sued . . . . . . . . . . . . . . . . . . . . . B. Human Rights Violations Actionable Under the ATS . . . . . 1. From Fila´rtiga to Sosa: Universal, Obligatory, and Definable . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Sosa Standard . . . . . . . . . . . . . . . . . . . . . . a. Widely Accepted and Clearly Defined . . . . . . . . vii

1

45 45 45 46 47 48 50 50

viii International Human Rights Litigation in U.S. Courts

b. c. d.

C.

Sosa’s Cautionary Principles . . . . . . . . . . . . “Practical Consequences” . . . . . . . . . . . . . The Continuing Vitality of Pre-Sosa ATS Decisions . . . . . . . . . . . . . . . . . . . . . . e. An Evolving Definition of the Law of Nations 3. Applying the Standard Before and After Sosa . . . . . Finding and Proving International Law . . . . . . . . . . .

PART II:

OTHER BASES FOR SUIT

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54 56

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57 59 61 66

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73

Chapter 4: The Torture Victim Protection Act (TVPA) . . . A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Relationship to the Alien Tort Statute (ATS) . . . . . . . . . 1. The TVPA Endorses the Fila´rtiga Line of Cases . . . 2. The Dispute About Whether the TVPA Replaces Some ATS Claims . . . . . . . . . . . . . . . . . . . . . . . . 3. Using the TVPA to Fill Gaps in the ATS . . . . . . . D. Who Can Sue . . . . . . . . . . . . . . . . . . . . . . . . . . E. Who Can be Sued . . . . . . . . . . . . . . . . . . . . . . . . F. Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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75 75 77 80 80

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81 84 85 86 87

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89 90 94 94 97 98 99

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103 104 105 108 110

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113 114 116

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118 120

Chapter 5: Jurisdiction Over States: The Foreign Sovereign Immunities Act (FSIA) . . . . . . . . . . . . . . . . . . . . . . . A. The FSIA and the Traditional Exceptions . . . . . . . . . . B. The “State Sponsors of Terrorism” Exceptions . . . . . . . 1. Overview . . . . . . . . . . . . . . . . . . . . . . . . . 2. Collecting Judgments . . . . . . . . . . . . . . . . . . 3. Suits Against Government Officials . . . . . . . . . . C. The Cause of Action in FSIA Litigation . . . . . . . . . . Chapter 6: Other Grounds for Human Rights Litigation . A. Section 1331 and Federal Common Law Claims . . . . . 1. Section 1331 Jurisdiction . . . . . . . . . . . . . . . 2. The Cause of Action in Section 1331 Claims . . . B. The Anti-Terrorism Act (ATA) . . . . . . . . . . . . . . . C. The Racketeer Influenced and Corrupt Organizations Act (RICO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Elements of a RICO Claim . . . . . . . . . . . 2. The Parties and Pleading Requirements . . . . . . . 3. Extraterritorial Jurisdiction and Jurisdictional Discovery . . . . . . . . . . . . . . . . . . . . . . . . D. State or Foreign Law Claims . . . . . . . . . . . . . . . .

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Detailed Table of Contents

1. 2.

ix

Pleading Parallel Domestic Law Torts . . . . . . . . . . . Litigating Domestic Law Claims in State or Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Pros and Cons of Pleading Domestic Law Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

121

PART III: ACTIONABLE HUMAN RIGHTS VIOLATIONS . . .

129

Chapter 7: Historical Paradigms, Modern Violations . . . . A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Alien Tort Statute (ATS) Framework . . . . . . . . . . C. The “Historical Paradigms” . . . . . . . . . . . . . . . . . . 1. Piracy . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Violations of Safe Conducts . . . . . . . . . . . . . . 3. The Rights of Ambassadors . . . . . . . . . . . . . . D. The Enumerated Violations . . . . . . . . . . . . . . . . . . 1. Torture . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extrajudicial Killing or Summary Execution . . . . . 3. Hostage-Taking . . . . . . . . . . . . . . . . . . . . . . 4. Aircraft Sabotage . . . . . . . . . . . . . . . . . . . . . E. Additional ATS Claims . . . . . . . . . . . . . . . . . . . . 1. Genocide . . . . . . . . . . . . . . . . . . . . . . . . . 2. Crimes Against Humanity . . . . . . . . . . . . . . . . 3. War Crimes . . . . . . . . . . . . . . . . . . . . . . . 4. Disappearance . . . . . . . . . . . . . . . . . . . . . . 5. Slavery, Forced Labor, Child Labor, and Trafficking a. Slavery and the Slave Trade . . . . . . . . . . . b. Forced Labor . . . . . . . . . . . . . . . . . . . . c. Child Labor . . . . . . . . . . . . . . . . . . . . d. Human Trafficking . . . . . . . . . . . . . . . . 6. Arbitrary Detention and Arrest . . . . . . . . . . . . . 7. Cruel, Inhuman, or Degrading Treatment . . . . . . . 8. Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . 9. Religious Freedom . . . . . . . . . . . . . . . . . . . . 10. Forced Exile and Forced Relocation . . . . . . . . . . 11. Freedom of Association . . . . . . . . . . . . . . . . . 12. Right to Life . . . . . . . . . . . . . . . . . . . . . . . 13. Gender Violence, Sexual Violence, and Gender Discrimination . . . . . . . . . . . . . . . . . . . . . . a. Gender Violence and Sexual Violence . . . . . b. Gender Discrimination . . . . . . . . . . . . . . . 14. Racial Discrimination . . . . . . . . . . . . . . . . . .

3.

121 123

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131 131 133 134 135 137 138 139 140 148 152 154 155 156 161 164 167 169 169 171 173 174 176 181 187 190 192 193 195

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198 198 202 202

x International Human Rights Litigation in U.S. Courts

F.

15. Systematic Violations of Human Rights . Claims that Have Been Generally Unsuccessful 1. Environmental Harm . . . . . . . . . . . . 2. Loss of Property . . . . . . . . . . . . . . 3. Miscellaneous Claims . . . . . . . . . . .

. . . . . to Date . . . . . . . . . . . . . . .

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204 205 205 209 211

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215 216 219 221 221 222 226 227

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229

Chapter 8: Treaty Violations . . . . . . . . . . . . . . A. Enforcing Treaties in U.S. Courts . . . . . . . . . . B. The Treaty Prong of the Alien Tort Statute (ATS) C. Common Treaty Claims . . . . . . . . . . . . . . . . 1. The Vienna Convention on Consular Relations 2. The Geneva Conventions . . . . . . . . . . . . 3. Child Soldiers . . . . . . . . . . . . . . . . . . D. Treaty Claims Against Private Defendants . . . . . . PART IV: PARTIES

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Chapter 9: The Plaintiff: Who Can Sue? . . . . . . . . A. Nationality . . . . . . . . . . . . . . . . . . . . . . . . . B. Location . . . . . . . . . . . . . . . . . . . . . . . . . . C. Relationship to the Human Rights Violation . . . . . D. Anonymous Plaintiffs . . . . . . . . . . . . . . . . . . E. Class Actions . . . . . . . . . . . . . . . . . . . . . . . 1. The Pros and Cons of Filing as a Class Action 2. Human Rights Class Actions . . . . . . . . . . . F. Organizational Plaintiffs . . . . . . . . . . . . . . . . .

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231 231 231 232 235 238 239 241 245

Chapter 10: Who Can Be Sued I: Personal Jurisdiction and Theories of Liability . . . . . . . . . . . . . . . . . . . . . . . . . A. Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . B. General Issues Related to the Defendant’s Liability . . . . . 1. State Action/Private Defendants . . . . . . . . . . . . . 2. Responsibility of Higher Officials . . . . . . . . . . . . 3. Complicity in the Acts of Others . . . . . . . . . . . . a. Aiding and Abetting . . . . . . . . . . . . . . . . i. The ATS . . . . . . . . . . . . . . . . . . . . . ii. Other Statutes . . . . . . . . . . . . . . . . . . . b. Conspiracy and Joint Criminal Enterprise . . . . . c. Traditional Tort Theories of Liability . . . . . . . i. Agency . . . . . . . . . . . . . . . . . . . . . . ii. Joint Venture . . . . . . . . . . . . . . . . . . . iii. Reckless Disregard . . . . . . . . . . . . . . . .

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247 249 251 251 257 264 265 265 271 274 276 276 277 278

Detailed Table of Contents

Chapter 11: Who Can Be Sued II: U.S. and Local Government Defendants . . . . . . . . . . . . . . . . . . . . . . A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Federal Tort Claims Act (FTCA) and Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Overview . . . . . . . . . . . . . . . . . . . . . . . . . 2. Suits Against U.S. Government Officials and Substitution of the U.S. Government as Defendant . a. The Statutory Claims Exception: Statutes and Treaties . . . . . . . . . . . . . . . . . . . . . . . b. The Substitution Process and Challenges to Substitution . . . . . . . . . . . . . . . . . . . . . c. The Scope of Employment . . . . . . . . . . . . d. Equitable Relief . . . . . . . . . . . . . . . . . . 3. Exhaustion of Administrative Remedies . . . . . . . . 4. Exceptions to the Waiver of Immunity . . . . . . . . a. The Foreign Country Exception . . . . . . . . . b. Combatant Activities . . . . . . . . . . . . . . . c. Intentional Torts . . . . . . . . . . . . . . . . . . d. Discretionary Function . . . . . . . . . . . . . . C. The Political Question Doctrine . . . . . . . . . . . . . . . . D. The Torture Victim Protection Act (TVPA) and U.S. Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. A Note on the Military Commissions Act of 2006 (MCA) F. The State Secrets Defense . . . . . . . . . . . . . . . . . . . G. Suing State and Local Officials . . . . . . . . . . . . . . .

xi

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281 281

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283 283

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286

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286

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290 291 297 298 298 298 299 299 300 300

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302 304 305 307

Chapter 12: Who Can Be Sued III: Corporations . . . . . . . . A. Evolution of the Alien Tort Statute (ATS): Toward Corporate Complicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Corporate Liability Under the ATS: Cases, Requirements, and Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ATS Cases Alleging Direct Corporate Abuses . . . . . . 2. Indirect Corporate Action . . . . . . . . . . . . . . . . . . 3. Corporate Structure Arguments: Parents and Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . C. Defenses in Corporate Human Rights Cases . . . . . . . . . . D. Application of the Torture Victim Protection Act (TVPA) and Other Statutory Grounds for Corporate Liability . . . . . . . . E. State Law Human Rights Claims Against Corporations . . . . F. Government Contractors . . . . . . . . . . . . . . . . . . . . . .

309 311 312 313 314 320 323 325 326 327

xii International Human Rights Litigation in U.S. Courts

1. 2.

The Scope of the Federal Tort Claims Act (FTCA) . . . The Government Contractor Defense . . . . . . . . . . .

PART V: DEFENSES AND IMMUNITIES

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Chapter 13: Foreign Affairs and Separation of Powers . . A. Political Question Doctrine . . . . . . . . . . . . . . . . . 1. Overview of the Doctrine . . . . . . . . . . . . . . . 2. Applying the Six Baker v. Carr Factors to Human Rights Litigation . . . . . . . . . . . . . . . . . . . . B. Act of State Doctrine . . . . . . . . . . . . . . . . . . . . C. International Comity . . . . . . . . . . . . . . . . . . . . . D. “Case-Specific Deference” . . . . . . . . . . . . . . . . . . E. Foreign Affairs Doctrine . . . . . . . . . . . . . . . . . . .

328 328 335

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337 338 339

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341 349 354 359 361

Chapter 14: Immunities . . . . . . . . . . . . . . . . . . . . . . . . A. The Foreign Sovereign Immunities Act (FSIA) and Individual Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Head-of-State Immunity . . . . . . . . . . . . . . . . . . . . . . C. Diplomatic Immunity . . . . . . . . . . . . . . . . . . . . . . . . 1. Accredited Diplomats and Consular Officers . . . . . . . 2. “Mission” Immunity . . . . . . . . . . . . . . . . . . . . . 3. Officials of the United Nations and Other Public International Organizations . . . . . . . . . . . . . . . . . D. Waivers of Immunity . . . . . . . . . . . . . . . . . . . . . . .

365

Chapter 15: Miscellaneous Defenses . . . . . . . . . . . . . . . . A. Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . 1. Equitable Tolling . . . . . . . . . . . . . . . . . . . . . . . 2. Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . B. Forum Non Conveniens . . . . . . . . . . . . . . . . . . . . . . . 1. The Standard . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Anti-Terrorism Act (ATA) and “State Sponsors of Terrorism” Claims . . . . . . . . . . . . . . . . . . . . . . 3. Application of the Doctrine in Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) Cases . . . . a. Adequate Alternative Forum . . . . . . . . . . . . . b. The Deference Due Plaintiff’s Choice of Forum . . c. Private Interest Factors . . . . . . . . . . . . . . . . d. Public Interest Factors . . . . . . . . . . . . . . . . 4. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Exhaustion of Domestic Remedies . . . . . . . . . . . . . . . . 1. The Exhaustion Requirement Under the TVPA . . . . . .

385 385 387 390 391 392

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365 374 378 378 380 380 383

394 395 395 397 398 399 401 402 402

Detailed Table of Contents xiii

a.

The Defendant’s Burden to Raise and Prove Defense . . . . . . . . . . . . . . . . . . . . . b. Inadequate Remedies . . . . . . . . . . . . . The ATS and Exhaustion of Domestic Remedies

the . . . . . . . . . . . .

403 404 407

Chapter 16: The Role of the Executive Branch . . . . . A. Forms of Executive Submissions . . . . . . . . . . . . . B. Soliciting, Opposing, and Influencing Executive Branch Submissions . . . . . . . . . . . . . . . . . . . . . . . . . 1. Requests for Executive Branch Submissions . . . 2. Challenging Requests for Executive Branch Submissions . . . . . . . . . . . . . . . . . . . . . . a. Respecting Executive Branch Inaction . . . . b. Premature Requests . . . . . . . . . . . . . . 3. Challenging the Content of Submission . . . . . . C. The Deference Due to Executive Branch Views . . . . D. Executive Branch Submissions in Human Rights Cases: Overview . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

411 412

. . . . . . . .

415 415

. . . . . . . . . . An . .

. . . . .

417 418 419 420 423

. .

433

PART VI: LITIGATION . . . . . . . . . . . . . . . . . . . . . .

439

Chapter 17: Preparing and Filing a Manageable Case . . . . . A. Developing a Case . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Origins of the Litigation . . . . . . . . . . . . . . . . 2. Working with Potential Plaintiffs: Understanding the Goals of the Litigation and the Impact on the Plaintiffs’ Lives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Linking Plaintiffs to a Defendant and a Human Rights Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Ensuring that the Case Is Manageable . . . . . . . . . . 5. Pre-Filing Investigation and Fact Gathering . . . . . . . . B. Drafting the Complaint . . . . . . . . . . . . . . . . . . . . . . C. Locating and Freezing Assets . . . . . . . . . . . . . . . . . . . D. Service and Filing Under Seal . . . . . . . . . . . . . . . . . .

441 441 441

Chapter 18: After the Complaint Is Filed A. Motions to Dismiss . . . . . . . . . . . B. Pro Se Defendants . . . . . . . . . . . . C. Default Judgments . . . . . . . . . . . . 1. Entry of Default . . . . . . . . . . 2. Motion for Default Judgment . . . 3. A Hearing on the Default . . . .

461 461 465 465 467 468 470

2.

and . . . . . . . . . . . . . . . . . .

Served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

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443 447 448 449 451 455 458

xiv International Human Rights Litigation in U.S. Courts

Chapter 19: Discovery . . . . . . . . . . . . . . . . . . . . . . . A. Out-of-Court Investigation . . . . . . . . . . . . . . . . . . . . B. Pre-Merits or Jurisdictional Discovery . . . . . . . . . . . . . C. Merits Discovery Under the Federal Rules . . . . . . . . . . D. Third-Party Discovery . . . . . . . . . . . . . . . . . . . . . . E. Discovery from the U.S. Government . . . . . . . . . . . . . F. Foreign Discovery and Obtaining Evidence from Abroad . . 1. Obtaining Evidence from Parties over Whom U.S. Courts Have Jurisdiction . . . . . . . . . . . . . . . . . a. Document Production . . . . . . . . . . . . . . . . b. Oral Examination of Witnesses . . . . . . . . . . c. Specific Hurdles to Discovery Abroad . . . . . . 2. Obtaining Evidence from Targets over Whom the U.S. Court Has No Jurisdiction or Will Not Exercise Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . a. Hague Evidence Convention . . . . . . . . . . . . b. Letters Rogatory . . . . . . . . . . . . . . . . . . . c. Bilateral Treaties . . . . . . . . . . . . . . . . . . . G. Expert Discovery Under the Federal Rules . . . . . . . . . . H. Responding to Defendants’ Discovery . . . . . . . . . . . . . 1. Communication with the Plaintiffs . . . . . . . . . . . . 2. Discovery from Plaintiffs’ Counsel and Their Agents . 3. Statements to the Media . . . . . . . . . . . . . . . . . 4. Allegations of Misconduct . . . . . . . . . . . . . . . . I. Discovery from Third Parties, Including Human Rights Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . J. Protective Orders . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 20: Proving a Case . . . . . . . . . . . . . . A. Fact Issues: Who Did What to Whom, When, and B. Proof of Damages . . . . . . . . . . . . . . . . . . 1. Compensatory Damages . . . . . . . . . . . . 2. Punitive Damages . . . . . . . . . . . . . . . C. Expert Witnesses . . . . . . . . . . . . . . . . . . . 1. Setting the Stage . . . . . . . . . . . . . . . . 2. Corporate Structure and Financial Documents 3. Local Law and International Law . . . . . . D. Trial . . . . . . . . . . . . . . . . . . . . . . . . . . E. Additional Evidentiary Issues . . . . . . . . . . . . F. Class Actions . . . . . . . . . . . . . . . . . . . . .

. . . . . Where . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . .

473 474 476 477 482 482 486

. . . .

487 487 488 489

. . . . . . . . . .

492 492 492 494 494 494 495 496 497 498

. .

499 501

. . . . . . . . . . . .

503 504 508 508 509 510 511 513 514 515 519 521

Detailed Table of Contents

Chapter 21: Remedies . . . . . . . . . . . . . . . . . . . . . . . . A. Monetary Damages . . . . . . . . . . . . . . . . . . . . . . . . 1. The Sosa/Fila´rtiga Approach . . . . . . . . . . . . . . . 2. Compensatory Damages . . . . . . . . . . . . . . . . . . 3. Punitive Damages Under the Alien Tort Statute (ATS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Punitive Damages Under the Torture Victim Protection Act (TVPA) . . . . . . . . . . . . . . . . . . . . . . . . B. Injunctive Relief and Declaratory Judgments . . . . . . . . . C. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . D. Attorneys’ Fees and Costs . . . . . . . . . . . . . . . . . . . E. Enforcing Judgments . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 2. Obstacles to Pre-Judgment Attachment . . . . . . . . . 3. Enforcing Judgments in the United States . . . . . . . 4. Enforcing Judgments in a Foreign Country . . . . . . . PART VII: HISTORICAL JUSTICE CLAIMS

xv

. . . .

523 523 524 526

.

526

. . . . . . . . .

528 529 532 532 533 533 534 535 536

. . . . . . . . . .

541

Chapter 22: Historical Justice Claims . . . . . . . . . A. Standing to Sue . . . . . . . . . . . . . . . . . . . . B. Statute of Limitations . . . . . . . . . . . . . . . . . C. Sovereign Immunity, the Political Question Doctrine, Related Defenses . . . . . . . . . . . . . . . . . . . . D. State Law Claims . . . . . . . . . . . . . . . . . . .

. . . . . . . . . and . . . . . .

. . . . . . . . .

543 544 544

. . . . . .

546 548

Statutory Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . A. Alien Tort Statute (ATS) . . . . . . . . . . . . . . . . . . . B. Torture Victim Protection Act (TVPA) . . . . . . . . . . . C. Foreign Sovereign Immunities Act (FSIA) . . . . . . . . . . D. Anti-Terrorism Act (ATA) . . . . . . . . . . . . . . . . . . E. Torture Victim Protection Act (TVPA) Legislative History 1. House Report No. 102-367(I) . . . . . . . . . . . . . . 2. Senate Report No. 102-249 . . . . . . . . . . . . . . . 3. Signing Statement by President George H.W. Bush . Table of International Documents Cited . . . . . . . . . . . . . . Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

551 551 552 554 558 561 561 568 584 587 591 611

FOREWORD

By Dolly Fila´rtiga, plaintiff in Fila´rtiga v. Pen˜a-Irala Throughout our childhood, my brother Joelito and I accompanied my father to his countryside clinic in the rural Ybycui, an area populated largely by poor and disenfranchised Guarani Indians. Our father was a leading physician in Paraguay who devoted his practice to those who did not have access to health care, a chronic problem in Paraguay to this day, but especially during the totalitarian regime of Alfredo Stroessner. My father had his clinic in Ybycui, where we lived for weeks at a time, sharing our meals and our lives with his patients. There, we not only learned the rudiments of health care, but we also learned about the role of compassion in providing professional services to a community or person in need. As a doctor, my father would advise, you must rely on your intelligence to identify the medical root of the problem and to execute the treatment (while always bearing in mind the social context of disease!), but you must also rely on your heart, because to truly be a healer, one must practice with compassion. My father’s influence was profound. It was my intention to follow in his footsteps and become a physician like him. But shortly before I was planning to enter medical school, my own heart was broken. On March 30, 1976, Joelito, then a 17-year-old, was tortured and killed by local police in Asuncio´n, Paraguay. At 3:00 a.m. on that morning, I was awakened by policemen, who took me to a neighbor’s house and showed me my brother’s beaten body. His bloodied corpse became my living nightmare. The chief inspector of the Asuncio´n police, Americo Pen˜a-Irala, told me to carry his body back to our family home and “never talk about what happened.” I remember telling him, “Tonight you have power over me, but tomorrow I will tell the world.” That evening signaled the end of my future career as doctor and the beginning of my devotion to the cause of justice. The story of my family’s journey to the promised land of vindication is well documented. Through a combination of luck and perseverance, we were able to track down my brother’s killer in the United States, where he had been sent when the government of Paraguay realized that no one believed their fabricated version of my brother’s murder. And then, almost as if by divine intervention, we found our way to the law offices of Michael Maggio, who introduced us to xvii

xviii International Human Rights Litigation in U.S. Courts

Peter Weiss and Rhonda Copelon of the Center for Constitutional Rights. Over the next several months, I watched in awe as these legal magicians crafted a strategy that would enable my family to bring Americo Pen˜a-Irala—and by extension, the Stroessner regime—into a U.S. court. Ultimately, their efforts resulted in the landmark decision in the case that bears my family’s name, Fila´rtiga v. Pen˜a-Irala, and is the basis for the cases described in this book. But it was not just tactical legal skills that led to this enormous victory for human rights. Without the commitment, the willingness to do what was necessary, and, yes, the compassion required to pursue justice, I do not believe we would have succeeded. And that is the message I seek to convey to those who read this text: Use your head to engage and integrate the legal techniques and remedies outlined here. But never forget that without your heart, without an authentic commitment to human rights for all, shaped by a love for humanity, you cannot truly succeed.

ACKNOWLEDGMENTS

A book about human rights is, above all, a tribute to those who have suffered human rights abuses. We have dedicated our book to the victims and survivors for whom the stories we retell are bitter, painful memories—and to their families. Both this book and the first edition, published by Beth Stephens and Michael Ratner in 1996, are the result of many years of effort by people who have contributed to the struggle for human rights around the world, including countless activists, grassroots groups, and human rights organizations, as well as human rights attorneys. At the Center for Constitutional Rights (CCR), a groundbreaking team of lawyers and legal workers developed the concept of suing for torture under the Alien Tort Statute (ATS) and applied their ideas in the extraordinarily successful litigation in Fila´rtiga v. Pen˜a-Irala.1 We are indebted to Peter Weiss and Rhonda Copelon for the tenacity and vision with which they litigated the Fila´rtiga case, the foundation upon which our work rests. We are grateful as well to the dozens of lawyers and scholars at CCR and elsewhere who have sought to realize the full potential of this litigation as a means to redress and deter human rights abuses. Roger Clark, Joan Fitzpatrick, and Harold Hongju Koh made crucial contributions to the first edition of the book, and Richard Lillich provided invaluable support for the project from its inception. The authors would also like to pay special thanks to Ralph Steinhardt, who has been a guiding force from the beginning in this area as a scholar and as an advocate. We remain grateful to the many law students (now experienced lawyers and colleagues!) who contributed to the first edition, including Deena Hurwitz, Doug Ford, and Danielle Moskowitz, and Bethany Berger, Colleen Downs, Margareth Etienne, Julia Fayngold, Carl Goldfarb, Laura Ho, Leslye Huff, Linda Keller, Sarita Ordon˜ez, Ethan Schwartz, Rebecca Thomas, and Wendy Wasserman. We appreciate as well the MacArthur Foundation’s Program on Peace and International Cooperation, which supported Beth Stephens during part of her work on the first edition. 1

630 F.2d 876 (2d Cir. 1980). xix

xx International Human Rights Litigation in U.S. Courts

For the second edition, Matt Eisenbrandt and Carolyn Patty Blum of the Center for Justice and Accountability shared their invaluable litigation insights. Rick Herz and Marco Simon at EarthRights International; Rhonda Copelon at the International Women’s Human Rights Law Clinic at the City University of New York School of Law; Maria LaHood at CCR; and Muneer Ahmad and Rick Wilson at Washington College of Law-American University each provided valuable editing and substantive comments. Michael Poulshock contributed research and edits to many chapters and reviewed much of the book, Adrienne Quarry drafted several sections and edited others, and Ellen Range at CCR tracked down documents and made possible the Web site, www.ccr-ny.org/humanrightsbook, on which we have posted the unpublished documents cited in the book. In addition, the authors have worked with many talented co-counsel and academics and dozens of students on human rights cases over the years, all of whom contributed in small and very large ways to this book. Although we will not attempt to list all of their names, we want them to know how much we appreciate their contributions to this book and to the human rights litigation at the heart of it. This edition would not have been possible without the Rutgers-Camden School of Law students who assisted Beth Stephens over several years. Special thanks to Amy Apollo, Gissou Azarnia, Rosemary Bates, Kathryn Buben, Keith Chapman, Alexander Cristaudo, Jas Dhillon, Erin Fay, Lisa Junghahn, Reb Murphy, Niyati Shah, Selim Star, Chuck Wahn, Michelle Westcoat, and George Yacoubian, who researched topics, drafted memos and sections of the book, cite-checked the seemingly endless footnotes—and left us the Tortinator, a database of human rights cases that Professor Stephens will one day learn how to use. Special thanks as well to CCR interns Khadine Bennett, Theresa Gheen, Sinan Kalayoglu, and Asha White. Thanks also to Elly Bulkin for her careful copy editing and valiant efforts to minimize passive constructions, agent deletions, and dangling participles. Jennie, Judith, Michael, and Paul would like to pay a special tribute to Beth Stephens, who was not only a co-author, but was the moving force and principal editor of the second edition. Without her, this book never would have been published.

INTRODUCTION

•

In 1976, 17-year-old Joel Fila´rtiga was tortured to death in Paraguay by high-ranking police officer Americo Norberto Pen˜a-Irala. Pen˜a-Irala subsequently fled Paraguay and was found living in Brooklyn, New York. • During Ferdinand Marcos’ tenure as President of the Philippines, up to 10,000 people in the Philippines were tortured, summarily executed, or disappeared at the hands of military intelligence personnel acting pursuant to Marcos’ orders. In 1986, Marcos was ousted from power and fled to Hawaii. • From 1992 to 1995, Bosnian Serb forces murdered and tortured thousands of women and men in Bosnia-Herzegovina, including widespread rapes and other sexual assaults. The self-proclaimed head of the Bosnian Serbs came to New York City in early 1993, buying time for his troops while he raised money and spoke at public events around New York. • Throughout the 1990s, the Unocal Oil Corporation worked together with the repressive military government of Burma to build a natural gas pipeline across Burma, knowing that the military had killed, raped, and otherwise tortured Burmese villagers and forced many of them to work on the pipeline. Thousands of villagers fled to miserable conditions in refugee camps to escape the repression. • In December 1998, Colombian military helicopters dropped cluster bombs on the town of Santo Domingo, Colombia, destroying homes; killing 17 civilians, including six children; and shooting civilians who tried to escape. Two U.S. companies, Occidental Petroleum Corporation and AirScan, Inc., worked with the Colombian military to plan and finance the attack. The victims and survivors of these vicious crimes sued the perpetrators in U.S. federal court.1 Prior to 1980, such suits did not seem possible. Today, 1 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980); Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005). To find detailed discussions of these and other cases mentioned in this Introduction, see the index of cases cited at the end of this book.

xxi

xxii International Human Rights Litigation in U.S. Courts

private individuals, government officials, and multinational corporations responsible for torture and other egregious abuses may be required to defend their actions in court. In a remarkable series of cases, the federal courts have upheld the right of the victims to sue those responsible for international human rights violations. Although not a substitute for other means of holding perpetrators accountable, human rights litigation contributes to an important long-term objective: working toward a world in which those who commit gross violations of human rights are brought to justice swiftly, in whatever country they try to hide. ´ RTIGA PRECEDENT A. THE FILA Modern U.S. human rights litigation in U.S. courts began with Joelito Fila´rtiga’s death by torture in Paraguay in 1976. His family’s demands for an investigation and prosecution of his murderer were met with a cover-up and threats against them and their attorneys. They soon learned that Paraguayan officials had slipped Americo Noberto Pen˜a-Irala, the man responsible for Joelito’s death, out of the country in an attempt to quiet the controversy surrounding the death. The Fila´rtigas traced Pen˜a-Irala to New York City, where the Center for Constitutional Rights (CCR) searched for a way to bring him to justice. These efforts led to a landmark decision, Fila´rtiga v. Pen˜a-Irala,2 the first successful use of the 200-year-old Alien Tort Statute (ATS)3 to enable victims of international human rights violations to sue in U.S. courts. The lower federal courts have applied the Fila´rtiga precedent to dozens of claims for human rights violations, including genocide, summary execution, torture, disappearance, and war crimes. In 2004, in Sosa v. Alvarez-Machain, the Supreme Court affirmed the Fila´rtiga line of cases, holding that the ATS authorizes federal court jurisdiction over claims based on clearly defined, widely accepted international law norms.4 Although the ATS is limited to non-citizen plaintiffs, Congress has enacted several narrowly tailored statutes that permit U.S. citizens to sue for damages for certain international law violations, including torture, summary execution, and certain “terrorist” crimes.5 In the mid-1990s, plaintiffs began to file human rights claims against multinational corporations.6 Although the corporate backlash led to increasing 2 3 4 5 6

630 F.2d 876 (2d Cir. 1980). 28 U.S.C. § 1350. 564 U.S. 692 (2004). See Chapters 4-6. See Chapter 10.

Introduction

xxiii

criticism of the ATS and the Fila´rtiga doctrine, efforts to repeal or modify the statute have been unsuccessful. The courts have uniformly held that corporations can be sued for direct involvement in abuses such as genocide and slavery, although the extent of corporate liability for assisting in abuses committed by others is still unclear. Litigants have also sought, with less success, to use the Fila´rtiga precedent to hold the U.S. government and its officials accountable for human rights abuses. Lawsuits addressing abuses ranging from murders during the military coup in Chile in 1973 to mistreatment of detainees after the September 11, 2001, attacks have all been dismissed, although several were still pending on appeal as this book went to press. B. THE IMPACT OF HUMAN RIGHTS LITIGATION Despite 50 years of rapid progress in the recognition of international human rights norms, enforcement of these norms and punishment of transgressors remains ineffective. The world community has proved incapable of preventing or stopping widespread violence on almost every continent. The vast majority of perpetrators have not been brought to justice, and their victims have not been compensated for their suffering. Although not a substitute for other means of enforcing human rights norms, human rights litigation is an important tool in the struggle to protect human rights. The cases have had a significant impact on the individual plaintiffs and on the human rights movements in their home countries, in the United States, and internationally. Victims of gross human rights violations have won multimillion dollar judgments. Although the judgments are difficult to enforce against individuals, collection is not impossible. Human rights plaintiffs seized over $1 million from a Haitian general—money that he won in the Florida state lottery.7 The plaintiffs in a case against two Salvadoran generals collected hundreds of thousands of dollars.8 A group of Burmese plaintiffs settled their multimillion dollar claims against Unocal Oil Corporation for an undisclosed amount.9 Some judgments may eventually be enforceable in the defendant’s home country, due to a changing political climate. The Fila´rtigas, the plaintiffs in the landmark ATS case, have sought to enforce the U.S. judgment in Paraguay, while the plaintiffs in other cases continue to search for assets to collect their judgments. 7 For details of the victory in Jean v. Dorelien, see Haiti: Carl Dorelien, available at http://www.cja.org/cases/dorelien.shtml. 8 For details about this case, see El Salvador: Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, available at http://www.cja.org/cases/romagoza.shtml. 9 See Unocal Settles Rights Suit in Myanmar, N.Y. TIMES, Dec. 14, 2004, at C6.

xxiv International Human Rights Litigation in U.S. Courts

Just as important, plaintiffs in these cases are often concerned about more than money. They take tremendous personal satisfaction from filing a lawsuit, forcing the defendant to answer in court or to leave the United States, and creating an official record of the human rights abuses inflicted on them or their families. As Dolly Fila´rtiga explains in the Foreword to this book, her family’s lawsuit against the man who tortured her brother to death gave them a chance to fight back against the horror he had inflicted on them. Carlos Mauricio, plaintiff in a lawsuit against two Salvadoran generals, summarized the importance of the litigation in his eyes: “[T]he struggle against torture begins with the struggle against impunity.”10 Mauricio explained, “One of the facts from torture is that they make you not want to talk about it. It took me 15 years to be able to tell my story. . . . [T]elling my story to others is important . . . because in that way you are really out of prison.”11 Similarly, the three plaintiffs in a case filed against an Ethiopian torturer found that the process of confronting their torturer in open court contributed to their recovery from their brutal experiences.12 The parents who sued for the loss of their children in the Fila´rtiga and Todd cases also took consolation from knowing that they had forced those responsible for the deaths of their sons to flee from the United States.13 The individual plaintiffs often serve as representatives of large numbers of survivors and family members of victims, who share the sense that a U.S. court judgment offers them some measure of justice for what they and their relatives have suffered. In addition to the financial impact of damage awards, defendants can be punished in other ways. For many, the public record of their abuses has lasting consequences. Guatemalan General Hector Gramajo, for example, saw his political aspirations stymied as a result of the judgment in Xuncax v. Gramajo. Kelbessa Negewo was deported from the United States after the decision in Abebe-Jira v. Negewo. Most of the individual defendants have fled the United States at some point during the litigation, sending a message to other culprits that responsibility for gross human rights abuses cannot be evaded by seeking refuge in this country. 10 David Gonzalez, Torture Victims in El Salvador Are Awarded $54 Million, N.Y. TIMES, July 24, 2002, available at http://www.cja.org/cases/Romagoza News/ NYTimesTorVicAwarded7.24.02.pdf. 11 Carlos Mauricio’s Story, available at http://www.cja.org/forSurvivors/CarlosforSurvivors. 12 Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). 13 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980); Todd v. Panjaitan, No. 9212255 (D. Mass. Oct. 26, 1994).

Introduction

xxv

More generally, in the countries where the abuses took place, the lawsuits help create a record of human rights violations and point the finger of responsibility at the culprits. Thus, human rights activists in Guatemala viewed the Gramajo cases as an important step in the long struggle to hold the military accountable for its human rights atrocities.14 After a U.S. court held Alvaro Rafael Saravia liable for the murder of Archbishop Oscar Romero in El Salvador, Saravia confessed his role and triggered a new search for those responsible for human rights abuses in that country.15 C. THE GLOBAL ACCOUNTABILITY MOVEMENT Human rights litigation strengthens the human rights movement in the United States and worldwide.16 Its impact extends beyond plaintiffs, defendants, and the human rights struggles in their home countries. Activists around the world are seeking means to hold accountable those who violate international human rights norms. Many efforts focus on criminal prosecution. International tribunals include both the International Criminal Court and ad hoc criminal tribunals for abuses committed in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and elsewhere. International mechanisms, however, are still inadequate to address most abuses. Most enforcement efforts take place in domestic legal systems. Domestic criminal prosecutions for human rights violations have been filed across Europe and in Africa and South America. In many countries, individuals can initiate criminal investigations, and they often can attach civil damage claims as well. U.S. civil actions are one piece of this global push for accountability. The Fila´rtiga decision and the cases following it reflect an important principle of international law: Some crimes are so heinous that the perpetrators can be brought to justice wherever they are found. As the Second Circuit said in Fila´rtiga, “[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all 14 The court in Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), found General Hector Gramajo, ex-Minister of Defense of Guatemala, responsible for a vast program of human rights abuses. 15 See Gerardo Reyes, End of Silence in 1980 Death of Archbishop, EL NUEVO HERALD, Mar. 24, 2006, available at https://www.cja.org/cases/Romero%20Press/Mi ami%20Herald 3.24.06.pdf. 16 For a discussion of U.S. civil litigation as part of the global movement, see Beth Stephens, Translating Fila´rtiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT’L L. 1 (2002).

xxvi International Human Rights Litigation in U.S. Courts

mankind.”17 The international law principle of universal jurisdiction authorizes—and in some circumstances obligates—any nation in which such evildoers are found to either prosecute those accused or extradite them to another nation that will put them on trial. In the absence of government support for criminal prosecutions, civil litigation enables individual victims of human rights abuses, or family members suing on their behalf, to take action even when government officials refuse to act. Private civil lawsuits also serve as a catalyst for government action. The attention they focus on human rights abuses and the information they uncover about such abuses and about hidden assets can help prepare the way for criminal prosecutions or other legal action. In this way, civil litigation complements other strategies, strengthening the drive for accountability. In the United States, civil litigation helps push human rights issues to the forefront, both when the government chooses to downplay or overlook such abuses and when the U.S. government itself engages in conduct that violates international human rights norms. Lawyers and activists in the United States have long sought to enforce international human rights norms in U.S. courts. Such efforts have been stymied by a series of restrictive judicial interpretations of the reach of international law.18 Against this backdrop, the Fila´rtiga line of cases offers a rare and important opportunity to bring international law claims before U.S. courts. Human rights cases enable human rights lawyers and advocates to act as private attorneys general, pursuing wrongdoers without awaiting governmental action. These private actions are particularly important when the U.S. government is complicit in the human rights abuses. The lawsuits also strengthen the judiciary’s understanding and expertise about international law norms. A victory that results in a statement about the human rights record of an individual, a corporation, or a government, or in the definition of a new or revised norm of international law may be just as important as monetary compensation. International human rights lawsuits are part of a tradition of U.S. public interest litigation: cases with objectives that include—but also go far beyond—the specific relief sought by the plaintiffs. 17

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 890 (2d Cir. 1980). For one of many expressions of frustration with the failure to apply international law norms in U.S. courts, see Justice Harry A. Blackmun, The Supreme Court and the Law of Nations, 104 YALE L.J. 39 (1994). 18

Introduction

xxvii

D. A ROAD MAP TO THE BOOK This book provides an in-depth guide to human rights litigation under the Alien Tort Statute and several additional statutory and common law provisions. These cases raise questions of international law, federal court jurisdiction, comparative law, and statutory construction that are unfamiliar to most U.S. lawyers. Further, even when the cases trigger procedural and litigation concerns similar to those raised by domestic cases, those issues arise in a novel context. This book provides both guidelines for determining whether a case is appropriate for a federal lawsuit and concrete information on how to proceed with every step of the litigation. Detailed chapters explain the basic elements of a case, along with the more complex issues of international and domestic law that may arise in such lawsuits. Part I discusses the ATS, while Part II introduces several additional statutory and common law grounds for human rights claims. Part III explains the international law violations that may be the basis for a federal lawsuit, as well as the possibility of claims for violations of treaties. Part IV discusses plaintiffs and defendants, including the controversies surrounding suits against corporate defendants and aiding and abetting liability. Several possible defenses are analyzed in Part V, including the political question and related doctrines, immunities, and the role of the executive branch in triggering these defenses. Part VI provides detailed guidance for litigating a human rights case, from investigating and developing a case and drafting and filing the complaint, through discovery, proof, default judgments, trials, and remedies. Finally, Part VII introduces a specialized area of human rights litigation: lawsuits based on historical injustices, particularly the Holocaust. * * * * * In addition to demanding recognition and justice for those who have suffered, human rights activism also strives for a future in which the atrocities we describe will be no more. Human rights norms today condemn and outlaw a wide and chilling range of abuses. The challenge is to bring human behavior into conformity with the law. Pursing that daunting goal requires great optimism but also an understanding that gross human rights abuses are carried out by individuals who must be held accountable. Our work serves as an indictment of those responsible for human rights abuses: those who wield the instruments of torture and who give the orders, as well as those who solicit, finance, condone, and cover up such abuses, in our own government and around the world. Only if those individuals are brought to justice, if we end the impunity of all involved, can we foresee the beginning of the end of human rights atrocities.

xxviii International Human Rights Litigation in U.S. Courts

The litigation described in this book is only a start. May our work hasten the day in which human rights abuses rarely occur and are promptly punished when they do, so that future generations will look upon these evils as relics of an uncivilized past.

THE STATUTORY FRAMEWORK

Most international human rights cases in U.S. courts rely upon one of four federal statutes: the Alien Tort Statute, 28 U.S.C. Section 1350; the Torture Victim Protection Act, 28 U.S.C. Section 1350 (note); the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act, 28 U.S.C. Section 1605(a)(7); or the Anti-Terrorism Act, 18 U.S.C. Sections 2333-2338. Each is discussed at length in subsequent chapters. The following is a brief introductory guide. Additional grounds for human rights litigation are discussed in Chapter 6. The Alien Tort Statute (ATS), 28 U.S.C. Section 1350

Enacted as part of the First Judiciary Act in 1789, the ATS was first applied to human rights litigation in 1980, in Fila´rtiga v. Pena-Irala. The statute requires an alien plaintiff, suing for “a tort only in violation of the law of nations.” In the absence of more specific statutory language, the courts have developed a standard to define such torts, limiting them to international law violations that are clearly defined and widely accepted, as required by the Supreme Court in Sosa v. Alvarez-Machain. Defendants may include the direct perpetrators of human rights abuses and commanding officers. Most courts have held that private actors, including corporations, may be held liable for some violations that do not require state action or when they act in complicity with state actors. The Torture Victim Protection Act (TVPA), 28 U.S.C. Section 1350 (note)

The TVPA, enacted in 1992, grants U.S. citizens as well as aliens a right to sue an individual for torture or extrajudicial execution and provides detailed definitions of each abuse. The violations must be committed “under actual or apparent authority, or color of law, of any foreign nation.” The Anti-Terrorism Act (ATA), 18 U.S.C. Sections 2331-2338

As part of an anti-terrorism initiative, Congress in 1994 authorized civil suits for victims of international terrorism. The ATA authorizes a U.S. national “injured in his or her person, property, or business by reason of an act of international terrorism” to sue for treble damages. “International terrorism” is defined in Section 2331 as a violent criminal act that appears to be intended to intimidate or coerce a civilian population or a government policy. xxix

xxx International Human Rights Litigation in U.S. Courts

The ‘‘State Sponsors of Terrorism’’ Exception to the Foreign Sovereign Immunities Act, 28 U.S.C. Section 1605(a)(7)

A 1996 amendment to the Foreign Sovereign Immunities Act (FSIA) created an exception to foreign state immunity to permit civil suits against a limited set of foreign states for torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources for such an act. The exception permits suits by U.S. citizens when the defendant government is on the U.S. government’s list of “state sponsor[s] of terrorism.” The State Department has designated five such countries: Cuba, Iran, North Korea, Sudan, and Syria. (Iraq was removed from the list in 2004 and Libya in 2006.) The FSIA also permits human rights lawsuits against foreign governments to proceed where the claims fall within the standard statutory exceptions codified in 28 U.S.C. Section 1605(a), including torts committed within the United States, waivers of immunity, extraterritorial torts having an impact in the United States, and expropriation of property.

A NOTE ABOUT CITATIONS AND UPDATES

The substantive discussions in the book and case citations were updated no later than January 2007; some key later cases have been added as well. As indicated in the footnotes, many of the unpublished decisions, briefs, and other documents cited in the book are available on the book Web site: www.ccr-ny.org/humanrightsbook. Full citations to the international treaties, declarations, and other documents cited in the book are available in the list of treaties cited at the end of the book. All Web sites were last visited on or after February 2007. See the book Web site, www.ccr-ny.org/humanrightsbook, for updates.

xxxi

ABOUT THE AUTHORS

The five co-authors have been involved in many of the lawsuits discussed in this book, as counsel for the plaintiffs or as consultants to the plaintiffs’ lawyers. Judith Brown Chomsky is a civil and human rights lawyer and a cooperating attorney with the Center for Constitutional Rights (CCR). Her present practice is almost exclusively limited to international human rights cases. Ms. Chomsky is a co-founder of the Juvenile Law Center of Philadelphia and the Employment Rights Law Project. She was president of the Philadelphia chapter of the National Lawyers Guild, on the board of the Middle East Research and Information Project, and a member of the Middle East Committee of the American Friends Service Committee. Formerly, her practice focused on labor law. Jennifer Green is a Senior Staff Attorney at the Center for Constitutional Rights (CCR), where she specializes in international human rights legal actions in U.S. courts and international bodies. She has represented plaintiffs in successful human rights lawsuits and has also worked on claims in the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Inter-American Commission on Human Rights, focusing on international women’s human rights. From 1992 to 1995, she was the Administrative Director at the Harvard Law School Human Rights Program, and she has worked for a number of human rights advocacy organizations. Paul Hoffman is a civil rights lawyer and partner in Schonbrun DeSimone Seplow Harris and Hoffman LLP in Venice, California. He is the former Legal Director of the ACLU Foundation of Southern California and the former Chair of the International Executive Committee of Amnesty International. He is one of the co-founders of the Center for Justice and Accountability. He has litigated numerous human rights cases and argued Sosa v. Alvarez-Machain in the U.S. Supreme Court. He has taught international human rights law at several law schools, including the University of Southern California, the University of California at Los Angeles, and Oxford University. Michael Ratner is President of the Center for Constitutional Rights (CCR). He has taught international human rights litigation at Columbia and Yale Law Schools and has litigated numerous human rights cases throughout the world. He led the Center in its aggressive legal fight against the post-September 11 violations of human rights and was part of the small group of lawyers that first xxxiii

xxxiv International Human Rights Litigation in U.S. Courts

took on representation of the Guanta´namo detainees. Along with Beth Stephens, he co-authored the first of edition of this book. Beth Stephens is a professor at Rutgers-Camden School of Law. She was a staff attorney at the Center for Constitutional Rights (CCR) from 1990-1995, in charge of the international human rights docket. She continues to work as a cooperating attorney with CCR and is a member of the Board of Directors of the Center for Justice and Accountability. She has litigated international human rights cases in both U.S. courts and international tribunals, and she has written extensively about many of the issues covered in this book. Along with Michael Ratner, she co-authored the first edition of this book.

PART I THE ALIEN TORT STATUTE (ATS)

The Alien Tort Statute (ATS), now codified as 28 U.S.C. Section 1350, was originally enacted as part of the Judiciary Act of 1789,1 the legislation by which the first U.S. Congress created the federal court system. The statute states in full: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The ATS was rarely invoked until 1980, when the Second Circuit’s landmark decision in Fila´rtiga v. Pen˜a-Irala recognized that the statute authorizes claims for violations of international human rights norms.2 Fila´rtiga applied the ATS to a claim by a Paraguayan family against the Paraguayan police officer who had tortured their son to death. Since Fila´rtiga, U.S. courts have recognized the wide sweep of the statute’s plain language: the ATS grants federal courts jurisdiction over suits by aliens for torts that violate international law (the law of nations) or treaties. The statute does not require that the tort occur in the United States, that the defendant be a U.S. citizen, or that Congress specifically create a cause of action. If the defendant is subject to the personal jurisdiction of a U.S. court, if the suit is for a tort, and if that tort constitutes a violation of international law such as the prohibition on torture, the federal court has jurisdiction over the claim. 1

The original language stated that the district courts “shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77. Subsequent amendments reflected changes in the way the federal codes handled exclusive federal jurisdiction. See William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 468 n.4 (1986). The term “law of nations” as used in 1789 has been supplanted by the term “international law.” See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 introductory note (1987) (“the law of nations, later referred to as international law . . .”). 2 630 F.2d 876 (2d Cir. 1980). 1

2 International Human Rights Litigation in U.S. Courts

In 2004, the Supreme Court in Sosa v. Alvarez-Machain upheld application of the ATS to a core of widely accepted, clearly defined international law violations.3 Sosa confirmed the key tenets of the ATS as applied by the lower courts, affirming that the statute permits claims based upon egregious human rights violations. ATS cases decided both before and after Sosa have developed a significant body of jurisprudence defining what violations of international law are actionable and who can be sued. Lower courts have applied the statute to uphold claims of egregious abuses such as genocide, war crimes, crimes against humanity, torture, summary execution, and disappearance. Defendants have included commanding officers as well as the actual abusers, and both government officials and private actors, including corporations. Suits have been filed against individuals and corporations alleging complicity in human rights violations as well as direct involvement. Although the Supreme Court opinion resolved the debate about the validity of ATS litigation, important issues are still being litigated in the lower courts. Perhaps most contested, the courts have yet to arrive at a consensus about the extent to which those who provide support or assistance to human rights violations committed by others can be held liable. This issue is key to the ongoing controversy over claims against private corporations accused of complicity in government abuses. One dispute put to rest by the Supreme Court concerned its proper name, Alien Tort Claims Act (ATCA), Alien Tort Act (ATA), or Alien Tort Statute (ATS). Since the Supreme Court in Sosa called the statute the Alien Tort Statute (ATS),4 we have adopted that term as well for this second edition of our book. The three chapters in this section of the book offer a basic introduction to the ATS, starting in Chapter 1 with a history of the statute from its enactment in 1789 through Fila´rtiga, Sosa, and the key post-Sosa cases. Chapter 2 examines the difficult jurisprudential issues raised by the ATS, placing the statute in the constitutional framework of federalism and separation of powers. Chapter 3 introduces the factors that determine who can sue and who can be sued in an ATS case and then addresses the standards by which the courts determine what violations fall within the reach of the statute. Later chapters of the book return to many of these issues, discussing them as applied not only to ATS claims, but also to other grounds for human rights litigation. 3 4

542 U.S. 692 (2004). Id. at 697.

CHAPTER 1 THE ALIEN TORT STATUTE (ATS): FROM ´ RTIGA, SOSA, AND BEYOND 1789 TO FILA

The courts and commentators often turn to the history and purpose of the ATS to assist in deciding how the statute should be applied today. This chapter begins with a review of the historical origins of the ATS, then traces the modern application of the statute from the landmark decision in Fila´rtiga v. Pen˜a-Irala1 through the Supreme Court’s endorsement of human rights litigation in Sosa v. Alvarez-Machain.2 The chapter concludes with a review of post-Sosa application of the ATS and the issues left open by the Supreme Court’s decision. A. THE EARLY HISTORY OF THE ATS No written record of the legislative history of the ATS has survived. Nevertheless, extensive research has enabled modern courts and scholars to understand the jurisprudential background against which the statute was enacted and its purpose.3 This history is summarized in the Supreme Court’s opinion in Sosa,4 which draws heavily on an amicus brief filed by law professors in the Sosa case.5 In the late-18th century, during the years preceding the ratification of the Constitution, the framers repeatedly expressed concern about their inability to comply with international law. Jurists of that era viewed international law as part of the common law, binding on all nations. The ATS was a key component 1

630 F.2d 876 (2d Cir. 1980). 542 U.S. 692 (2004). 3 Although the statute was once described as a “legal Lohengrin” because “no one knows from whence it came,” IIT v. Vencap, 519 F.2d 1001, 1015 (2d. Cir. 1975), that description is no longer accurate, given that legal historians have pieced together significant aspects of its history. 4 Sosa v. Alvarez-Machain, 542 U.S. 692, 710-26 (2004). 5 Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondents, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), 2004 WL 419425. Links to this and all of the Sosa briefs are available at www.ccr-ny.org/ humanrightsbook. 2

3

4 International Human Rights Litigation in U.S. Courts

of an effort to comply with the new nation’s fundamental obligation to adhere to the law of nations: The Alien Tort Statute was a direct response to what the Founders understood to be the nation’s duty to propagate and enforce those international law rules that directly regulated individual conduct. . . . The Framers sought to uphold the law of nations as a moral imperative—a matter of national honor.6 The drafters of the statute were motivated in part by the conviction that upholding the law of nations was an obligation of nationhood.7 More practically, the framers also feared that violations of international law would lead to retaliation by the powerful nations of Europe. As one scholar has observed, at the time the first Judiciary Act was passed, the “plight of individual citizens in foreign countries, and not territorial ambitions, was the major excuse for war.”8 [T]he Alien Tort Statute was an important part of a national security interest in 1789. Acutely recognizing that denials of justice could provide a major excuse for a European power to launch a full-scale attack on our nation, the Founding Fathers made sure that any such provocation could be nipped in the bud by the impartial processes of federal courts.9 As a weak, young nation, the United States was eager to avoid international incidents that might lead another nation to intervene in U.S. affairs. 6 Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 475, 482 (1989). 7 Burley stresses both the moral and practical aspects of the concern that all nations uphold their obligations to the international order: If all nations chose to ignore their duties under the law of nations, the entire international system would dissolve into chaos. Conversely, compliance with the law of nations had a strong positive component. Collective compliance by all nations would assure a world safe for trade and travel, rich in the exchange of goods and ideas, conducive to both national and human progress. Honor, as a shared concept motivating such compliance, was a check on the abuse of power. It was thus a pillar of a beneficial and lasting international order. Id. at 487 (footnotes omitted). She views this expansive view of the purposes underlying the ATS as crucial to understanding its broad scope. Id. at 487-88. 8 Anthony D’Amato, The Alien Tort Statute and the Founding of the Constitution, 82 AM. J. INT’L L. 62, 64 (1988). 9 Id. at 65.

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The ATS was enacted against the backdrop of international scandals ignited by torts committed in the United States against foreign diplomats. The disputes were litigated in state courts because the federal courts had no jurisdiction over the claims. For example, an attack by a French nobleman on a French diplomat, General Marbois (the “Marbois Affair”), led to a flurry of exchanges between members of the federal government and French representatives.10 Despite France’s demands for redress, the federal government was only able to urge the state court to take action. A few years later, the federal government was again embarrassed by its inability to intervene when a local police officer improperly entered the home of a foreign diplomat.11 Referring to these incidents, the Supreme Court noted in Sosa: “The Continental Congress was hamstrung by its inability to ‘cause infractions of treaties, or of the law of nations to be punished.’”12 In response to these crises, the Continental Congress repeatedly called on the states to enact legislation granting aliens remedies for violations of international law. According to modern records, only Connecticut responded, with a statute that bears marked similarities to the ATS.13 Response to Congress’ pleas was so inadequate that Edmund Randolph complained in 1787 that the failure to punish violations of the law of nations threatened to plunge the nation into war.14 The ATS was part of a comprehensive scheme designed to ensure that civil suits involving foreigners were resolved by federal, not state, courts.15 Granting 10 William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 491-94 (1986). See Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784) (sentencing defendant for the assault after a state court prosecution). 11

Casto, supra note 10, at 494.

12

Sosa v. Alvarez-Machain, 542 U.S. 692, 716 (2004) (citing JAMES MADISON, JOURNAL OF THE CONSTITUTIONAL CONVENTION 60 (E. Scott ed. 1893)). 13

See Beth Stephens, Federalism and Foreign Affairs: Congress’s Power to “Define and Punish . . . Offenses Against the Law of Nations,” 42 WM. & MARY L. REV. 447, 469-72 (2000). Oliver Ellsworth, who drafted the ATS, was a member of the Connecticut legislature when this statute was enacted. See Willam R. Casto, Correspondence, 83 AM. J. INT’L L. 901, 902-03 (1989). 14 15

Stephens, supra note 13, at 471.

Sosa v. Alvarez-Machain, 542 U.S. 692, 716 (2004). See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (Edwards, J., concurring) (“There is evidence . . . that the intent of this section was to assure aliens access to federal courts to vindicate any incident which, if mishandled by a

6 International Human Rights Litigation in U.S. Courts

jurisdiction over such cases to the federal courts strengthened the federal government’s role as the representative of the various states in international affairs, reflecting “the Framers’ overarching concern that control over international affairs be vested in the new national government to safeguard the standing of the United States among the nations of the world.”16 The Supreme Court has long recognized the ATS as one of several statutes “reflecting a concern for uniformity in this country’s dealings with foreign nations and . . . a desire to give matters of international significance to the jurisdiction of federal institutions.”17 As Fila´rtiga noted, the ATS was “part of an articulated scheme of federal control over external affairs . . . where principles of international law are at issue.”18 Two cases decided in the 1790s referred to the recently enacted statute. In Moxon v. The Fanny, a case in which shipowners sought damages for the seizure of their ship by a privateer, the district court said in dicta that the ATS did not afford jurisdiction because the suit involved a claim for restitution, not “a tort only.”19 In Bolchos v. Darrell, however, the district court found ATS jurisdiction over a suit for restitution of “property” seized in violation of international law.20 In addition, a 1795 opinion of Attorney General William Bradford referred to the possibility of civil litigation under the ATS.21 Bradford was asked whether U.S. citizens who participated in the plunder of a British colony in Sierra Leone could face criminal prosecution. Bradford was uncertain, but he made it clear that the injured could bring a federal civil action: But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to state court, might blossom into an international crisis”); id. at 812 (Bork, J., concurring) (statute intended “to open federal courts to aliens for the purpose of avoiding . . . conflicts with other nations”). 16 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 887 (2d Cir. 1980). 17 Banco National de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964). 18 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 885 (2d Cir. 1980). 19 17 F. Cas. 942, 948 (D. Pa. 1793). 20 3 F. Cas. 810 (D.S.C. 1795). The “property” was actually three enslaved persons. The case illustrates the importance of the evolution of international law: The opinion made no mention of possible international law issues surrounding slavery. 21 1 Op. Att’y. Gen. 57 (1795).

Historical Origins and Modern Cases

7

these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.22 These historical references were analyzed by the Supreme Court in Sosa as support for the holding that the statute provides federal jurisdiction and that Congress expected the federal courts to recognize common law claims arising out of violations of international law.23 Between 1795 and 1976, fewer than two dozen reported cases invoked jurisdiction under the ATS.24 Jurisdiction was sustained in only one, Adra v. Clift, a 1961 international custody dispute.25 Adra upheld ATS jurisdiction over a claim by a Lebanese national that his ex-wife had illegally seized custody of his children, using a false passport to bring the children to the United States. The court cobbled together the tort (wrongful interference with custody) with an international law violation (passport falsification) to find a violation of the ATS. The fact that the plain language of the statute (“a tort in violation of the law of nations”) requires that the tort itself constitute a violation of the law of nations was not discussed in the opinion. ´ RTIGA CASE B. THE FILA By the time Fila´rtiga v. Pen˜a-Irala was filed in the late 1970s,26 developments in international law and politics had created an opportune setting for revival of the ATS. The decades following World War II witnessed a tremendous growth in human rights norms, with major new human rights agreements drafted by the United Nations and regional human rights bodies.27 22

Id. at 59.

23

Sosa v. Alvarez-Machain, 542 U.S. 692, 720-21 (2004).

24

Randall counted 21 cases claiming ATS jurisdiction prior to Fila´rtiga. Kenneth C. Randall, Federal Jurisdiction Over International Law Claims: Inquiries into the Alien Tort Claims Statute, 18 N.Y.U. J. INT’L L. & POL. 1, 4-5 nn.15-17 (1985). See also Casto, supra note 10, at 468 n.5, 469 n.7; Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 55 nn.8-11 (1981). The statute is also cited in an additional opinion of the Attorney General, 26 Op. Att’y Gen. 250 (1907). 25 195 F. Supp. 857 (D. Md. 1961). Other cases cited the ATS as an alternative basis for jurisdiction. See, e.g., Seth v. British Overseas Airways Corp., 329 F.2d 302, 306 (1st Cir.), cert. denied, 379 U.S. 858 (1964); Papageorgiou v. Lloyds of London, 436 F. Supp. 701, 702 (E.D. Pa. 1977). 26 630 F.2d 876 (2d Cir. 1980). 27 For overviews of the development of international human rights law after World War II, see, e.g., Richard B. Bilder, An Overview of International Human Rights Law, in

8 International Human Rights Litigation in U.S. Courts

Equally important, the 19th and early-20th-century view that international law did not govern a nation’s treatment of its own citizens had been largely abandoned.28 Politically, the atmosphere in the United States was favorable to an extension of human rights protections: President Jimmy Carter had made human rights a public centerpiece of his administration. Finally, the facts of the Fila´rtiga case, a single act of brutality committed by a culprit who was living illegally in the United States, presented the human rights issues in a clear, dramatic posture. During the Vietnam War, attorneys at the Center for Constitutional Rights (CCR) researched the possibility of using the ATS to sue officials of the United States on behalf of a young victim of a massacre by U.S. troops in Vietnam, a case that never materialized. CCR also cited, but did not pursue, the statute as a basis for jurisdiction in a case challenging the “baby lift” that evacuated thousands of Vietnamese children to the United States for adoption in the last days of that war.29 CCR turned this preparation to good use when the Fila´rtiga family asked for help in bringing a torturer to justice. Joel Fila´rtiga and his daughter Dolly Fila´rtiga were referred to CCR as they searched for a means to take action against a Paraguayan police officer who had tortured and killed their 17-year-old son and brother, Joelito Fila´rtiga, in 1976. The police officer, Americo Norberto Pen˜a-Irala, slipped out of Paraguay after the Fila´rtigas charged him with the murder; he was living in New York City at the time the U.S. lawsuit was filed.30 GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 3, 4-6 (Hurst Hannum ed., 4th ed. 2004); Blum & Steinhardt, supra note 24, at 64-75. 28 See Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 884-85 (2d Cir. 1980). See also MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 256-61 (4th ed. 2003); Blum & Steinhardt, supra note 24, at 60-62, 64-67; Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2351-59 (1991). 29 In Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1201-02 n.13 (9th Cir. 1975), CCR cited the statute as a jurisdictional basis for the argument that a federal court could entertain a claim that the Immigration and Naturalization Service and others violated international law. The Ninth Circuit noted that “[t]he illegal seizure, removal and detention of an alien against his will in a foreign country would appear to be a tort . . . and it may well be a tort in violation of the ‘law of nations,’ ” but did not rule on the ATS claim. Id. 30 Dolly Fila ´ rtiga informed U.S. immigration officials of Pen˜a-Irala’s illegal presence in the United States; he was detained and ordered deported shortly thereafter. The Fila´rtigas obtained a stay of the order of deportation from the district court. The stay was lifted after that court granted Pen˜a-Irala’s motion to dismiss, and Pen˜a-Irala was deported. For a summary of the facts, see Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 879-80 (2d Cir.

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9

The complaint relied on ATS jurisdiction, charging that torture by a Paraguayan police official constituted a tort in violation of the law of nations. The district court granted Pen˜a-Irala’s motion to dismiss,31 relying on dicta in two Second Circuit opinions that indicated that the law of nations did not apply to a government’s treatment of its own citizens.32 On appeal, the Second Circuit reversed, overruling its prior interpretation of international law and applying the plain language of the ATS.33 The circuit court had requested the views of the U.S. State Department; a brief filed jointly by the Justice and State Departments strongly supported the plaintiffs’ ATS claims.34 The landmark decision held that the ATS permitted the family of a torture victim to sue the person responsible in federal court after obtaining personal jurisdiction over the defendant in this country. The Fila´rtiga court held: [D]eliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction.35 To reach that landmark holding, the court had to resolve several key issues: 1980). For a compelling narrative of Joelito Fila´rtiga’s murder and his family’s efforts to bring Pen˜a-Irala to justice in Paraguay and through the U.S. litigation, see RICHARD ALAN WHITE, BREAKING SILENCE: THE CASE THAT CHANGED THE FACE OF HUMAN RIGHTS (2004). For a full history of the legal struggle, see WILLIAM J. ACEVES, THE ANATOMY OF TORTURE: A DOCUMENTARY HISTORY OF FILARTIGA V. PENA-IRALA (2007). Finally, for a fictionalized dramatization of the case, see ONE MAN’S WAR (HBO Films 1991). 31 Fila ´ rtiga v. Pen˜a-Irala, Civ. No. 79-917 (E.D.N.Y. May 15, 1979). 32 See Dreyfus v. von Finck, 534 F.2d 24, 31 (2d Cir.), cert. denied, 429 U.S. 835 (1976); IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975). These cases stated that international law only governed relations between states, and, by extension, one state’s treatment of the citizens of another state. 33 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 878 (2d Cir. 1980). 34 Brief for the United States as Amici Curiae, Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), 1980 WL 340146, available at www.ccr-ny.org/humanrightsbook. The changing views of the U.S. executive branch are discussed in Chapter 16, Section D. 35 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 878 (2d Cir. 1980).

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• •

•

“[C]ourts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.”36 International law may be ascertained by consulting the works of international law scholars, by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law.37 The ATS affords jurisdiction over a violation of the law of nations that meets the “stringent” standard set forth by the Supreme Court in The Paquete Habana: a violation of “a settled rule of international law” that commands “the general assent of civilized nations.”38 Official torture is prohibited by the law of nations.39 “[I]nternational law confers fundamental rights upon all people vis-a`-vis their own governments.”40 Past cases holding that violations committed by a state against its own citizens do not violate international law are “clearly out of tune with the current usage and practice of international law.”41 Article III of the Constitution, which grants federal jurisdiction over cases “arising under the . . . laws of the United States,” does not bar adjudication of tort claims arising outside of the United States; since international law is part of U.S. common law, these cases “arise under” the laws of the United States.42

To reinforce its assumption of jurisdiction, the court noted that tort claims have traditionally been regarded as transitory actions that may be brought in jurisdictions other than the one where the claim arose. Thus, state court jurisdiction would have been proper over the claims asserted by the Fila´rtigas 36 Id. at 881. The Fila ´rtiga court rested this conclusion on a Supreme Court decision that held that “the traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime, a standard that began as one of comity only, had ripened over the preceding century into ‘a settled rule of international law’ by ‘the general assent of civilized nations.’ ” Id. (quoting The Paquete Habana, 175 U.S. 677, 694 (1900)). 37 Id. at 880 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820)). 38 Id. at 881 (quoting The Paquete Habana, 175 U.S. 677, 694 (1900)). 39 Id. at 884. 40 Id. at 885. 41 Id. at 884. 42 Id. at 885-87.

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because the acts alleged would violate Paraguayan law as well as the law of the forum. But where the tort also violates international law, federal jurisdiction is preferable, because the ATS was enacted “as part of an articulated scheme of federal control over external affairs . . . where principles of international law are in issue”43 and was designed to respond to “[t]he Framers’ overarching concern that control over international affairs be vested in the new national government to safeguard the standing of the United States among the nations of the world.”44 Subsequent cases have adopted the basic principles of the Fila´rtiga decision with only minor deviations. Thus, each decision has applied the law of nations as it had evolved at the time the case was decided. Each has looked to varied sources of international law to determine what constitutes a “tort . . . in violation of the law of nations.” Each has recognized that international law encompasses human rights violations committed by a state against its own citizens. Finally, each decision has rejected claims that the Constitution bars federal court jurisdiction over torts committed by non-citizens in a foreign country. Equally important is the inspirational legacy of the Fila´rtiga decision. The court did not limit itself to a legal holding about the jurisdictional reach of the ATS. The opinion closed with a call for the implementation of international law and human rights protections: In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free of torture. Spurred first by the Great War, and then the Second, civilized nations have banded together to prescribe acceptable norms of international behavior. . . . Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.45 With this stirring language, the court reinforced its historic contribution to the drive to punish and prevent human rights abuses. Subsequent decisions have 43 44 45

Id. at 885. Id. at 887. Id. at 890.

12 International Human Rights Litigation in U.S. Courts

taken additional “small but important step[s]” toward the goals set forth in the Fila´rtiga opinion. ´ RTIGA TO SOSA C. FROM FILA Despite concerns that Fila´rtiga would unleash a flood of federal court litigation, fewer than two dozen cases have sustained ATS claims in the years since the Fila´rtiga decision. Approximately 150 lawsuits had been filed under the statute as of late 2006; the majority had been dismissed, most often for failure to allege a cognizable violation of international law. The successful cases: (1) alleged an egregious human rights violation such as torture; (2) involved a defendant subject to the personal jurisdiction of the court and not entitled to immunity from suit; (3) satisfied the requirements of standing, the statute of limitations, and forum non conveniens; and avoided application of abstention doctrines such as the political question doctrine or act of state. The substantive holdings of these cases will be analyzed in detail later in this chapter and throughout this book. Here, key cases are discussed briefly in order to provide a broad overview of the development of this area of law. The first post-Fila´rtiga decision, Tel-Oren v. Libyan Arab Republic,46 produced three concurring opinions dismissing ATS claims for three distinct reasons. Judge Edwards agreed with the Fila´rtiga holding, but distinguished Tel-Oren on the facts: the case involved claims against the Palestine Liberation Organization, a non-state actor, and Judge Edwards concluded that the international law prohibition of torture applied only to public officials.47 Judge Bork rejected Fila´rtiga’s interpretation of the ATS, holding that the statute afforded jurisdiction and a cause of action only for a limited set of international law violations recognized at the time of its passage.48 Judge Robb, the third member of the panel, argued for dismissal on political question grounds.49 Despite the pleas of two of the judges,50 the Supreme Court declined to review the decision.51 Although Judge Bork’s opinion was frequently cited by 46

726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985). Id. at 775-98. 48 Id. at 798-823. 49 Id. at 823-27. 50 Id. at 775 (“This case deals with an area of the law that cries out for clarification by the Supreme Court”) (Edwards, J., concurring); id. at 823 (Bork, J., concurring) (same). 51 Tel-Oren v. Libyan Arab Republic, 470 U.S. 1003 (1985) (order denying petition for certiorari). Before ruling on the petition for certiorari, the Court had invited the Solicitor General to file a brief expressing the views of the United States. Tel-Oren v. Libyan Arab Republic, 469 U.S. 811 (1984) (mem.). The government filed a brief arguing that a grant 47

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13

commentators who disagreed with the holding of Fila´rtiga, it was not followed by any court. Fila´rtiga held liable the police officer accused of physically torturing Joelito Fila´rtiga. Later cases addressed both additional international law violations and additional categories of defendants. A cluster of cases against an Argentine general, for example, led to judgments for summary execution and disappearance as well as torture, based on his role as commander of the forces that physically committed the abuses.52 A series of cases against Philippine dictator Ferdinand Marcos and his daughter, Imee Marcos-Manotoc, similarly held them responsible for executions, torture, and disappearances committed under their command. In the Marcos cases, several panels of the Ninth Circuit endorsed the Fila´rtiga approach53 and a jury awarded almost $2 billion in compensatory and punitive damages on behalf of both individual plaintiffs and a class comprised of thousands of human rights victims and their families.54 Three cases decided in 1994 and 1995 applied the Suarez-Mason and Marcos doctrine of command responsibility, holding officers responsible for abuses committed by their forces.55 In Paul v. Avril, the court awarded $41 million to six Haitians tortured by troops acting under the orders of former Haitian dictator Prosper Avril.56 In Todd v. Panjaitan, the mother of a young man killed in a massacre in East Timor was awarded $14 million in a suit of certiorari would be premature because of the divided opinions of the D.C. Circuit and the possibility that the lower courts might clarify the “complex issues of federal jurisdiction, international law and statutory construction . . . without such review.” Brief for the United States as Amicus Curiae, Tel-Oren v. Libyan Arab Republic, at 9, 24 I.L.M. 427, 432, available at www.ccr-ny.org/humanrightsbook. 52 Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987), on reconsideration 694 F. Supp. 707 (N.D. Cal. 1988); Quiros de Rapaport v. Suarez-Mason, Civ. No. 87-2266 (N.D. Cal. Apr. 11, 1989); Martinez-Baca v. Suarez-Mason, Civ. No. 87-2057 (N.D. Cal. Apr. 22, 1988). Judgments in excess of $100 million were entered in these cases. 53 Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995); Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993). In an earlier unpublished opinion, the Ninth Circuit rejected Marcos’ claim of head-of-state immunity. Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989), available at 1989 WL 76894. 54 Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996). 55 Command responsibility is addressed in Chapter 10, Section B.2. 56 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment). See also Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (decision denying motion to dismiss).

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against an Indonesian general who had supervised a campaign of human rights abuses, including the massacre.57 A judgment against a Guatemalan general held him liable for a program of gross human rights abuses, including torture, summary execution, and disappearance.58 Subsequent cases have obtained ATS judgments against an Ethiopian government official,59 a Chilean general,60 two Salvadoran generals,61 and the former Mayor of Beijing.62 In a key development, the Second Circuit’s 1995 decision in Kadic v. Karadzic held that the ATS grants jurisdiction over claims against private actors who either commit international law violations that do not require state action or act in concert with state officials.63 Kadic involved claims of torture, summary execution, genocide, war crimes, and crimes against humanity filed against Radovan Karadzic, the head of the Bosnian Serb political entity, by victims and survivors of the brutal ethnic cleansing in Bosnia-Herzegovina in the early 1990s. The court first held that Karadzic could be held liable for international law violations that required state action because he acted in complicity with the government of the former Yugoslavia. The court also recognized that Karadzic could be held liable for genocide and war crimes even without state action, because neither violation requires that violations be committed under color of law.64 57

Civ. No. 92-12255 (D. Mass. Oct. 26, 1994). Xuncax v. Gramajo, 886 F. Supp. 162, 201 (D. Mass. 1995). 59 Abebe-Jiri v. Negewo, 72 F.3d 844 (11th Cir.), cert. denied, 519 U.S. 830 (1996) (awarding damages for torture). Negewo was held liable for both direct liability and command responsibility. 60 Cabello v. Ferna ´ ndez-Larios, 402 F.3d 1148 (11th Cir. 2005) (upholding jury verdict awarding damages for extrajudicial killing, torture, crimes against humanity, and cruel, inhuman, and degrading treatment). 61 Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (upholding jury verdict against two former ministers of defense of El Salvador). 62 Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) (finding that defendant exercised command and control over security forces responsible for torture and arbitrary detention in China). 63 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996). The state action requirement and the liability of private actors are discussed in Chapter 10, Section B.1. 64 Id. at 241-42, 245. The court also held that Karadzic could be found to be acting under color of law as the leader of an illegal, de facto state. Id. at 244-45. 58

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These principles were used to hold an officer in a private paramilitary group in El Salvador liable for the execution of Archbishop Oscar Romero.65 The court found that the defendant had acted under apparent authority and color of law of the Salvadoran government. The Karadzic court’s recognition that private actors are both bound by some international law norms and can be held liable when they act in concert with state actors paved the way for ATS litigation against corporations. Corporations can be sued for violations that do not require state action, such as genocide, slavery and forced labor, war crimes, and crimes against humanity. Corporations can also be sued for abuses committed in conjunction with state officials. This theory was applied in Doe v. Unocal Corp., a case in which Burmese citizens charged that the oil corporation was responsible for violations that included forced labor and torture.66 A handful of cases filed against multinational corporations have survived preliminary motions, although none has yet produced a final judgment.67 In addition to the cases that have upheld ATS jurisdiction, many more have been dismissed. Most often, claims have been dismissed for a failure to state an international law violation cognizable under the ATS. For example, claims based on domestic tort or contract law have been routinely dismissed,68 as have 65 Doe v. Saravia, 348 F. Supp. 2d 1112, 1149-52 (E.D. Cal. 2004) (finding the defendant responsible for crimes against humanity for his role in the assassination of Archbishop Oscar Romero, who was shot while saying mass in El Salvador in 1980). See also Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Oct. 24, 2006) (finding the defendant liable for torture committed by a paramilitary group because group was “working in concert with the government.”), available at www.ccr-ny.org/humanrightsbook. 66 963 F. Supp. 880, 883-84, 892 (C.D. Cal. 1997) (denying motion to dismiss); Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000) (granting defendants’ motion for summary judgment), aff’d in part, rev’d in part, 395 F.3d 932 (9th Cir. 2002) (reversing summary judgment and remanding for trial), reh’g en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, before a scheduled argument of the rehearing en banc, the parties announced a settlement and dismissed all claims. Neither side would disclose details of the settlement. Unocal Settles Rights Suit in Myanmar, N.Y. TIMES, Dec. 14, 2004, at C6. See also Doe v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (post-settlement order granting the parties’ stipulated motion to dismiss and vacating the district court decision on the motion for summary judgment). 67 For a discussion of human rights litigation against corporations, see Chapter 12. 68 See, e.g., Wong-Opasi v. Tennessee State Univ., 229 F.3d 1155 (6th Cir. 2000) (rejecting ATS jurisdiction over state law contract and tort claims); Hamid v. Price Waterhouse, 51 F.3d 1411, 1417-18 (9th Cir. 1995) (holding that claims of fraud, breach of fiduciary duty, and misappropriation of funds are not breaches of the “law of nations”

16 International Human Rights Litigation in U.S. Courts

claims based on environmental harms.69 Human rights cases have been dismissed because of the defendant’s immunity to suit, based on foreign sovereign immunity, diplomatic immunity, head-of-state immunity, or the immunity of the U.S. government.70 Finally, several doctrines limit the reach of the ATS, including statutes of limitation, forum non conveniens, and the political question and act of state doctrines.71 By the time the Supreme Court agreed to hear Sosa v. Alvarez-Machain in the fall of 2003, the Second, Fifth, Ninth, and Eleventh Circuit Courts of Appeals, along with district courts in the First and D.C. Circuits, had all applied the ATS more or less as outlined in Fila´rtiga.72 The courts followed the lead of Fila´rtiga, but took seriously its requirements of careful scrutiny of ATS claims. As a result, courts dismissed most of the cases decided between 1980 and 2004. Where plaintiffs alleged serious human rights violations against defendants who were subject to suit, however, the courts upheld claims and awarded multimillion dollar judgments. Congress revisited this area three times in the 1990s.73 The Torture Victim Protection Act (TVPA), enacted in 1992, provides aliens or U.S. citizens a cause of action for torture or extrajudicial execution committed “under color of foreign for purposes of jurisdiction under the ATS); Arndt v. UBS AG, 342 F. Supp. 2d 132 (E.D.N.Y. 2004) (rejecting ATS jurisdiction over commercial claims for fraud, unjust enrichment, conversion, and misrepresentation). See Chapter 6, Section D for a discussion of state law claims and Chapter 7, Section F for additional analysis of rejected ATS claims. 69 See Flores v. S. Peru Copper, 343 F.3d 140, 159-72 (2d Cir. 2003) (holding that claims of environmental damage did not meet the Fila´rtiga standard); Beanal v. FreeportMcMoran, Inc., 197 F.3d 161, 166-67 (5th Cir. 1999) (same). Chapter 7 analyzes the violations that fall within the jurisdiction of the ATS. 70 See Chapters 5 (the Foreign Sovereign Immunities Act), 11, Section B (U.S. Government Defendants), and 14 (Immunities). 71 See Chapters 13 (Foreign Affairs and Separation of Powers) and 15 (Miscellaneous Defenses). 72 See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.), cert. denied, 519 U.S. 830 (1996); Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); Doe v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Xuncax v. Gramajo, 886 F. Supp. 162, 201 (D. Mass. 1995). 73 These three modern statutes are discussed in Chapters 4-6.

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law.”74 A second statute, enacted in 1990 as part of an anti-terrorism initiative, authorizes civil suits by U.S. nationals who are victims of terrorism.75 Finally, an exception to the Foreign Sovereign Immunities Act (FSIA) affords jurisdiction over claims by U.S. nationals for torture, extrajudicial killing and other abuses if filed against a government on the U.S. list of “state sponsors of terrorism.”76 Each statute expanded the range of plaintiffs or defendants subject to suit. The legislative history of the TVPA includes an explicit endorsement of the ATS as interpreted by Fila´rtiga.77 The ATS was the subject of voluminous law review commentary during the years after the Fila´rtiga decision, most of it favorable. The line of cases triggered relatively little criticism for almost 20 years. Most of the defendants up to then were foreign individuals, and most cases resulted in default judgments that could not be enforced against those defendants. By the late 1990s, however, cases filed against multinational corporations began to draw attention, including a largely negative response from the business and conservative media.78 Opponents began efforts to derail ATS litigation. At the same time, scholars began to challenge the theory underlying Fila´rtiga’s application of the ATS, arguing that the statute granted jurisdiction but did not create a cause of action and that the federal courts did not have the constitutional authority to derive a cause of action from either international law or domestic common law. The administration of President George W. Bush played a central role in the campaign against ATS litigation, arguing both that the ATS had been wrongly interpreted to permit claims for human rights violations and that all such litigation interfered with executive branch power over foreign affairs. Both 74

28 U.S.C. § 1350 (note). 18 U.S.C. § 2333(a) (authorizing U.S. nationals injured by “an act of international terrorism” to sue for treble damages). 76 The FSIA is codified at 28 U.S.C. Sections 1330, 1602-1611; the “state sponsors of terrorism” exception is codified at 28 U.S.C. Section 1605(a)(7). 77 H.R. REP. NO. 102-367, at 3, (1992), reprinted in 1992 U.S.C.C.A.N. 84 (stating that the ATS has “important uses and should not be replaced”). The TVPA legislative reports are included in the Appendix. 78 See, e.g., GARY CLYDE HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING MONSTER: THE ALIEN TORT STATUTE OF 1789 (2003); Cait Murphy, Is This the Next Tort Trap? Using an Ancient Statute, Lawyers Make Business Quake, FORTUNE, June 23, 2003, at 30; Robert H. Bork, Judicial Imperialism, WALL ST. J., June 17, 2003, at A16; Corporate Ethics: Big oil’s dirty secrets, ECONOMIST, May 10, 2003, at 53; Patti Waldmeir, An Abuse of Power—US Courts Should Not Punish Companies for Human Rights Violations Committed Overseas, FIN. TIMES, Mar. 14, 2003, at 12. 75

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positions were soundly rejected by the Supreme Court in Sosa v. Alvarez-Machain.79 D. SOSA v. ALVAREZ-MACHAIN The Supreme Court decision in Sosa v. Alvarez-Machain culminated a constitutional, diplomatic, and human rights saga that began in 1985, when Enrique Camarena-Salazar, an agent of the U.S. Drug Enforcement Agency (DEA), was captured, tortured, and murdered by drug traffickers in Mexico.80 U.S. officials indicted several Mexican citizens for the crime, many of whom have since been convicted and imprisoned in the United States. Humberto Alvarez-Machain, a doctor, was accused of participating by helping to keep Camarena alive during the torture so that he could be interrogated further. Unable to extradite Alvarez to the United States, the DEA hired a group of Mexicans to kidnap him. They held him captive overnight in Mexico, then flew him to the United States. DEA agents in Texas transferred him to California to face prosecution. The federal district court dismissed the indictment, however, finding that kidnapping Alvarez across the border violated the U.S.-Mexico extradition treaty, a decision affirmed by the Ninth Circuit. In 1992 the Supreme Court reversed, ruling that the manner of the seizure did not affect federal court criminal jurisdiction, and remanded the case for trial on the original criminal indictment. The decision provoked an international uproar.81 Later in 1992, the district court granted Alvarez’s motion for judgment of acquittal after the presentation of the government’s case, ending the criminal prosecution. Alvarez returned to Mexico and filed a civil suit for damages against the Mexicans involved in his abduction, including Jose´ Francisco Sosa, and against several DEA agents and the U.S. government. Most of the claims and 79 These positions, reflected in briefs filed before the Ninth Circuit in Doe v. Unocal and in the Supreme Court in Sosa, contradicted the position of the administrations of Presidents Jimmy Carter and Bill Clinton, and were much more vehement than the positions taken by Presidents Ronald Reagan and George H.W. Bush. The role of the executive branch in human rights litigation is discussed in Chapter 16; see that chapter for citations to the briefs mentioned here. 80 The facts and procedural history are detailed in the first of the two Alvarez-Machain Supreme Court decisions, United States v. Alvarez-Machain, 504 U.S. 655, 657-58 (1992), and summarized in the more recent opinion, Sosa v. Alvarez-Machain, 542 U.S. 692, 697 (2004). 81 See Mark S. Zaid, Military Might Versus Sovereign Right: The Kidnaping of Dr. Humberto Alvarez-Machain and the Resulting Fallout, 19 HOUS. J. INT’L L. 829 (1997) (detailing foreign government reaction to the first Alvarez-Machain decision).

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defendants were dismissed after a series of motions and an interlocutory appeal, leaving only an ATS claim against Sosa for arbitrary arrest and detention and a claim against the U.S. government for false arrest. The district court entered a summary judgment holding Sosa liable for arbitrary arrest and detention and transborder abduction, but dismissed the claim against the U.S. government.82 The court then awarded Alvarez-Machain $25,000 in damages. A three-judge panel of the Ninth Circuit affirmed the ATS judgment against Sosa on both grounds and reinstated the claim against the U.S. government.83 The Ninth Circuit agreed to hear the case en banc and, in a six-five decision, affirmed the panel decisions as to arbitrary arrest and detention and the claim against the U.S. government.84 All of the judges agreed that the ATS permits claims for human rights violations; the dissenters disagreed with the application of the statute to the facts of this case.85 The Supreme Court granted petitions for certiorari review on both issues: the false arrest claim against the U.S. government and the ATS claim against Sosa. In reversing the judgment against the U.S. government, the Court endorsed a narrow interpretation of the Federal Tort Claims Act (FTCA), ruling that it bars all claims for injuries that occur in a foreign country.86 In the ATS section of the opinion, Justice Souter, writing for a six-justice majority, resolved several of the outstanding issues regarding the statute: •

The ATS is a jurisdictional statute enacted on the assumption that the courts would use their common law powers to recognize a

82 Sosa v. Alvarez-Machain, 542 U.S. 692, 699 (2004). The claim against the U.S. government was governed by the Federal Tort Claims Act, which is discussed in Chapter 11, Section B. 83 Alvarez-Machain v. United States, 266 F.3d 1045, 1064 (9th Cir. 2001), reh’g en banc granted, 284 F.3d 1039, 1040 (9th Cir. 2002). 84 Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003). The en banc court rejected the transborder abduction claim, holding that Alvarez lacked standing to complain about the invasion of Mexican sovereignty. Id. at 615-17. 85 Four of the dissenting judges would have held that the treatment of Alvarez did not constitute a violation of international or domestic law. Alvarez-Machain v. United States, 331 F.3d 604, 645-46 (9th Cir. 2003) (O’Scannlain, J., dissenting). The fifth would have dismissed the claim as a non-justiciable political question. Id. at 659 (Gould, J., dissenting). 86 See Chapter 11, Section B.4.a.

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small number of common law claims for violations of international norms.87 • Modern courts today have the constitutional authority to recognize common law claims for violations of international law, but should use caution in exercising that discretion.88 • The “narrow class” of modern international norms actionable under the ATS are those “of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” upon which the statute was based.89 The Court recognized that this standard is “generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached” the Supreme Court, including Fila´rtiga and Marcos.90 • The federal courts should use caution in recognizing ATS claims, to avoid infringing on the foreign affairs powers of the executive branch.91 For over two decades, supporters of the ATS line of litigation had waited warily for Supreme Court review of Fila´rtiga and its progeny. Human rights activists hailed the long-awaited decision in Sosa as a major victory, a cause for celebration. The Court endorsed the approach followed by the lower courts and validated the careful application of statute. Opponents, however, argued that the Court had imposed additional constraints on ATS litigation. Debate over the contours of ATS jurisdiction then returned to the lower courts, with consensus on many points but heated debate over key issues left unresolved by Sosa.92 87

Sosa v. Alvarez-Machain, 542 U.S. 692, 712-24 (2004).

88

Id. at 725-27.

89

Id. at 724-25.

90

Id. at 732-33 (citing Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 890 (2d Cir. 1980) and In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995)). 91 92

Id. at 725-28.

For a full understanding of the Sosa decision, it is helpful to review the briefs filed by the parties and the many amicus briefs. Strikingly, for example, the Court ignored many of the arguments against the modern interpretation of the ATS put forth by the U.S. government and business organizations. And counsel for Alvarez-Machain argued persuasively that the Court distorted both his legal claims and the facts of his case. For a discussion of these issues, see Ralph Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REV. 2241, 2253 (2004). Defendants have sought to relitigate many

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E. POST-SOSA CASES AND THE CURRENT STATE OF THE ATS Since the Supreme Court’s 2004 decision in Sosa, the federal courts have considered dozens of cases litigated under the ATS, with decisions in approximately 50 cases available on line as of late 2006. In most respects, the courts have followed Sosa’s lead and have applied pre-Sosa doctrines unchanged. In particular, the courts generally used pre-Sosa standards to determine which abuses trigger ATS jurisdiction. For example, in Doe v. Saravia, a case alleging liability for the assassination of Archbishop Oscar Romero in El Salvador, the court interpreted the Sosa requirement of a widely accepted, clearly defined violation as the functional equivalent of the pre-Sosa test, which required a “specific, universal and definable” international norm.93 The courts have also dismissed many cases at the outset for failure to allege a violation of international law, as they did before Sosa. The court in Arndt v. UBS AG, for example, applied pre-Sosa case law to reject ATS jurisdiction over “garden variety” common law commercial claims for fraud, unjust enrichment, conversion, and misrepresentation.94 ATS suits purporting to rely on contract claims, invasion of privacy, negligence, and assorted business torts have all been dismissed.95 issues raised and rejected in Sosa. Review of the briefs provides a context that is useful in understanding the full sweep of the Supreme Court’s decision and in refuting efforts to raise issues argued in Sosa. 93 348 F. Supp. 2d 1112, 1153-57 (E.D. Cal. 2004) (holding that claims of extrajudicial execution and crimes against humanity triggered ATS jurisdiction, relying on pre-Sosa decisions). See also Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1278 (N.D. Cal. 2004) (holding that the standard for determining whether a violation falls within the jurisdiction of the ATS is the same as that defined by pre-Sosa case law). See discussion in Chapter 3, Section B.3. See also The Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 334 (S.D.N.Y. 2005), in which the defendant sought to reopen issues that had been decided before Sosa, arguing that neither corporate liability nor aiding and abetting liability survived the Supreme Court decision. The district court reaffirmed the prior decision, finding nothing in the Sosa opinion that undercut either doctrine. An earlier decision by the same court noted that nothing in Sosa altered the balance of equities for a forum non conveniens analysis. The Presbyterian Church of Sudan v. Talisman Energy, Inc., Civ. No. 01-9882, 2004 WL 1920978, at * 2 n.2 (S.D.N.Y. Aug. 27, 2004). 94 342 F. Supp. 2d 132, 138-41 (E.D.N.Y. 2004). 95 See, e.g., Brooks-McCollum ex rel. Emerald Ridge Serv. Corp. v. Emerald Ridge Serv. Corp. Bd. of Dirs., 166 Fed. Appx. 618 (3d Cir. 2006) (state law slander and corporate governance claims); Frazer v. Chicago Bridge and Iron, Civ. No. 05-3109,

22 International Human Rights Litigation in U.S. Courts

Plaintiffs from around the world continue to litigate cases following the model of Fila´rtiga—lawsuits against individual defendants for violations committed outside of the United States. Two post-Sosa Eleventh Circuit decisions upheld judgments against individuals, applying pre-Sosa precedents with barely a mention of the Supreme Court case.96 A third decision from the same circuit reversed a dismissal based on the statute of limitations and exhaustion of remedies.97 One circuit questioned the relationship between the ATS and the TVPA in a post-Sosa decision. In Enahoro v. Abubakar, the first Seventh Circuit application of the ATS, the court held that post-Sosa claims for torture and summary execution must be brought pursuant to the Torture Victim Protection Act, a result that none of the pre-Sosa cases had reached.98 But both the Ninth and the Eleventh Circuit quickly rejected the Enahoro holding.99 In the most striking change in ATS jurisprudence, cases against individual foreign defendants for abuses that occurred abroad now represent a small portion of the claims, fewer than ten of approximately 50 post-Sosa cases with reported decisions as of late 2006. Claims against U.S. government employees accounted for about a third of the reported post-Sosa decisions in that time period, many of them addressing the internationally condemned abuses of detainees taken into custody after the September 11, 2001, attacks. ATS claims against the U.S. government and U.S. officials, however, have had little success, 2006 WL 801208 (S.D. Tex. Mar. 27, 2006) (claims for negligence); Ganguly v. Charles Schwab & Co., Inc., Civ. No. 04-1742, 2005 WL 1772659 (2d Cir. July 25, 2005) (claims against brokerage firm). 96 Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (upholding jury verdict for torture); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148 (11th Cir. 2005) (upholding jury verdict for extrajudicial killing, torture, crimes against humanity, cruel, inhuman, and degrading treatment). 97 Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005). 98 408 F.3d 877 (7th Cir. 2005). See discussion in Chapter 4, Section C. 99 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *42 n.28 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (holding that claims for torture and summary execution can still be brought pursuant to the ATS); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-51 (11th Cir. 2005) (same); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148 (11th Cir. 2005) (same); Chavez v. Carranza, 413 F. Supp. 2d 891, 898-99 (W.D. Tenn. 2005) (appeal pending) (same). But see Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1025 (W.D. Wash. 2005) (appeal pending) (following Enahoro without discussion).

Historical Origins and Modern Cases

23

with most cases dismissed based on the political question doctrine, state secrets, and sovereign immunity.100 As of late 2006, approximately half of the post-Sosa reported ATS decisions involved corporate defendants—but half of these addressed either claims by victims of the September 11 attacks or historical justice claims. The September 11 cases involved claims against hundreds of defendants, including individuals, corporations (primarily banks), and government officials.101 Some of the cases based on historical injustices—e.g., cases seeking damages for injuries suffered during the Holocaust and related World War II atrocities, the genocide against the Armenians—have settled. Some claims against governments and corporations have been dismissed in deference to settlement agreements worked out in other cases or because of the statute of limitations.102 In the first post-Sosa appellate decisions in corporate defendant cases based on modern violations, two courts reversed dismissals of ATS claims. Applying the Supreme Court’s instructions to exercise “vigilant doorkeeping,” the Eleventh Circuit in Aldana v. Del Monte Fresh Produce, N.A., Inc., affirmed dismissal of claims of arbitrary detention and cruel, inhuman, or degrading treatment, but it reversed dismissal of a torture claim.103 In Sarei v. Rio Tinto, the Ninth Circuit reversed a political question dismissal, rejecting the State Department’s assertion that the litigation would interfere with foreign affairs.104 Post-Sosa courts continue to hold liable not only those who personally commit abuses, but also those liable through command responsibility or aiding and abetting. In Cabello v. Ferna´ndez-Larios, for example, the Eleventh Circuit held that the ATS encompasses accomplice liability and other forms of indirect liability.105 In Doe v. Saravia, the court also looked to pre-Sosa holdings to determine that the defendant could be held liable for aiding and abetting an 100

See Chapter 11. See In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005). The September 11 claims against foreign government defendants have been dismissed under the doctrine of foreign sovereign immunity, and some of the claims against corporate and individual defendants have been dismissed for lack of personal jurisdiction or in the absence of factual allegations of complicity in the attacks. Other claims, however, have survived preliminary motions. 102 See Chapter 22, Section B. 103 416 F.3d 1242 (11th Cir. 2005). 104 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *6-9 (9th Cir. 2007), reh’g en banc granted 2007 WL 2389822. 105 Cabello v. Ferna ´ ndez-Larios, 402 F.3d 1148, 1157-58 (11th Cir. 2005). 101

24 International Human Rights Litigation in U.S. Courts

assassination.106 The standard for assessing aiding and abetting liability remains a contested issue.107 The courts continue to hold that the ATS permits suits against private actors in general and against corporations in particular. No court has rejected either proposition. However, most corporate lawsuits allege corporate complicity in abuses committed by government security forces or private paramilitary groups.108 Thus, the ongoing dispute about the standard by which private actors can be held liable for such conduct is key to much of the corporate litigation.109 The dispute about complicity liability reflects an underlying disagreement about the law applicable to ATS claims. The Supreme Court in Sosa held that the ATS is based on the understanding that the federal courts will recognize federal common law causes of action for a narrow set of violations of international law. The definition of the violation is drawn from international law. The Court left unresolved, however, what body of law determines ancillary issues, such as who can be sued, complicity liability, and damages. This controversy is discussed in Chapter 2. Finally, many cases litigated during the administration of George W. Bush faced an additional burden: the Bush administration’s hostility to ATS litigation led to an unprecedented number of executive branch interventions in ongoing cases, claiming that they interfered with foreign relations. The courts have yet to define the proper standard by which to evaluate such claims and disagree about the extent to which they can examine the logic and factual support for the administration’s claims.110 * * * * * 106 348 F. Supp. 2d 1112 (E.D. Cal. 2004). See also Almog v. Arab Bank, PLC, Civ. Nos. 04-5564, 05-0388, 2007 WL 214433, at * 23-29 (E.D.N.Y. Jan. 29, 2007) (upholding aiding and abetting liability under the ATS); In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) (“[C]ourts, including the Second Circuit, have almost unanimously permitted actions premised on a theory of aiding and abetting and conspiracy.”). But see Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 26 (D.D.C. 2005) (rejecting aiding and abetting liability under the ATS); In re South African Apartheid Litig., 346 F. Supp. 2d 538, 549-51 (S.D.N.Y. 2004) (appeal pending) (same). 107 See Chapter 10, Section B.3.a. 108 But see discussion of direct liability claims against corporations in Chapter 12, Section B.1. 109 See Chapter 12, Section B. 110 See Chapter 16.

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In the third decade of litigation since the groundbreaking decision in Fila´rtiga, the basic contour of the ATS is clear: the statute grants the federal courts jurisdiction over common law claims by aliens seeking damages for core violations of international law. Rather than representing a break with prior case law, the Supreme Court decision in Sosa v. Alvarez-Machain affirms most of the earlier decisions. Despite these areas of agreement, several key issues not addressed by the Court in Sosa remain contested. ATS litigation triggers a long list of complex questions of domestic and international law and the interaction between the two. The chapters that follow explore the many issues of domestic and international law raised by the apparently simple language of the Alien Tort Statute.

CHAPTER 2 UNDERSTANDING THE ALIEN TORT STATUTE (ATS): THE ANALYTIC FRAMEWORK

Prior to the Supreme Court’s decision in Sosa v. Alvarez-Machain,1 most Alien Tort Statute (ATS)2 decisions began by considering whether Fila´rtiga v. Pen˜a-Irala3 and its progeny had properly interpreted the statute to permit the federal courts to decide claims of human rights violations. Although every case to reach a decision on the issue held that the ATS did authorize modern human rights litigation,4 the question persisted, fueled by the fact that the cases did not agree on a theory that explained the original purpose of the statute and its modern application. Critics argued that the statute was purely jurisdictional and questioned the constitutionality of the Fila´rtiga approach. The Supreme Court put these questions to rest in Sosa, holding that the ATS is both jurisdictional and based on the understanding that the courts will recognize federal common law claims for violations of international law. Sosa left unresolved, however, choice of law questions about which issues are governed by international law and which by federal common law. 1

542 U.S. 692 (2004). 28 U.S.C. § 1350. 3 630 F.2d 876 (2d Cir. 1980). 4 See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.), cert. denied, 519 U.S. 830 (1996); Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996). Only two judges rejected this interpretation of the ATS, in concurring opinions written two decades apart: Judge Bork, Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798-823 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (Bork, J., concurring) and Judge Randolph, Al Odah v. United States, 321 F.3d 1134, 1145-49 (D.C. Cir. 2003) (Randolph, J., concurring), reversed and remanded by Rasul v. Bush, 542 U.S. 466, 483-85 (2004) (specifically noting ATS jurisdiction). 2

27

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A. ESTABLISHING SUBJECT MATTER JURISDICTION OVER AN ATS CLAIM As enacted in 1789, the ATS granted to the district courts “cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”5 Amendments updated the statutory language, which now reads, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”6 Clearly, the statute was intended at a minimum to authorize federal court subject matter jurisdiction over a certain class of torts. As the Supreme Court concluded in Sosa, “[W]e think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.”7 As discussed in Chapter 1, Sosa concluded that the ATS was intended to grant federal courts subject matter jurisdiction over claims based on widely accepted, clearly defined international law norms. Given that the federal courts are courts of limited jurisdiction, plaintiffs must include allegations of subject matter jurisdiction in the complaint and bear the burden of demonstrating that the court has jurisdiction.8 A court must dismiss a claim if it does not have subject matter jurisdiction, even if the defendant does not raise the issue.9 Applied to ATS cases, these standard rules of federal subject matter jurisdiction require that plaintiffs allege a “tort . . . in violation of the law of nations” in order to demonstrate that a claim falls within the jurisdictional reach of the statute. As the Second Circuit stated in Kadic, 5

Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (emphasis added). 28 U.S.C. § 1350 (emphasis added). 7 Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004). 8 FED. R. CIV. P. 8(a)(1) (“A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends.”). 9 FED. R. CIV. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). See, e.g., Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *6-9 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822, where the Ninth Circuit addressed subject matter jurisdiction even though the defendant had not appealed the district court’s denial of a motion to dismiss for lack of subject matter jurisdiction. “Lack of subject matter jurisdiction is not waived by failure to object and may be raised at any time in the proceedings. Further, it is our responsibility as a court of limited jurisdiction to ensure that we have subject matter jurisdiction before proceeding further.” Id. (citations omitted.). 6

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29

“There is no federal subject-matter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation of the law of nations (or a treaty of the United States).”10 Several ATS decisions note that the plaintiff must specify the particular international law norm allegedly violated by the defendant, because an allegation of a violation that meets the requirements of the statute is necessary to establish subject matter jurisdiction.11 Fila´rtiga described this jurisdictional scrutiny as requiring a “more searching preliminary review” of the complaint: The paucity of suits successfully maintained under the section is readily attributable to the statute’s requirement of alleging a “violation of the law of nations” (emphasis supplied) at the jurisdictional threshold. Courts have, accordingly, engaged in a more searching preliminary review of the merits than is required, for example, under the more flexible “arising under” formulation.12 Kadic adopted the same formulation.13 This language, however, is problematic for two reasons. First, it appears to conflate subject matter jurisdiction and whether plaintiffs have stated a claim for relief. If the allegations allege an arguable violation of the law of nations, the federal court has subject matter jurisdiction.14 If the court eventually decides that the complaint fails to state a 10

Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995). See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 884 (7th Cir. 2005) (“Because the ATS provides jurisdiction over a very limited number of claims and the jurisdictional grant is so closely tied to the claim, we need to examine whether there is a claim in this case which allows for the exercise of jurisdiction.”); Arndt v. UBS AG, 342 F. Supp. 2d 132, 138 (E.D.N.Y. 2004) (“[C]onsistent with the Supreme Court’s holding in Sosa, the Second Circuit has held that a party claiming relief under the ATCA must identify the specific international law that the defendant allegedly violated” (citing Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995)); Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1292 (S.D. Fla. 2003) (“[T]o survive a 12(b)(1) motion to dismiss, the complaint must identify the specific international law that the defendant allegedly violated.”). 12 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 887 (2d Cir. 1980) (emphasis in original). 13 “Because the Alien Tort Act requires that plaintiffs plead a ‘violation of the law of nations’ at the jurisdictional threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required under the more flexible ‘arising under’ formula of section 1331.” Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995). 14 “[I]t is well established that, in passing on a motion to dismiss . . . on the ground of lack of jurisdiction over the subject matter . . . the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 11

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claim for relief, it should dismiss for that ground—but it has subject matter jurisdiction to evaluate the sufficiency of the complaint.15 Second, to the extent that Fila´rtiga and Kadic may urge a more searching review of the adequacy of the allegations of the complaint, the quoted language has been overruled by later Supreme Court decisions holding that pleading standards are governed by the Federal Rules of Civil Procedure and should not be modified in the absence of statutory authorization. As summarized by the Talisman court: [Defendant’s] conclusion that a court must conduct a searching review of an ATCA claim is far from self-evident. . . . Pleading rules are governed by Fed. R. Civ. P. 8(a). . . . [A]s the Supreme Court recently noted in the employment discrimination context, a “requirement of greater specificity for particular claims is a result that ‘must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.’”16 The notice pleading requirements of the federal rules mandate only that plaintiffs plead facts that, if true, would entitle them to relief.17 As the Ninth Circuit explained in Sarei v. Rio Tinto: 15 If a plaintiff asserts a federal claim, the district court has federal question jurisdiction unless the claim is “immaterial and made solely for the purpose of obtaining jurisdiction or . . . wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83 (1946); see also Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1194 (D.C. Cir. 2004) (applying Bell v. Hood standard to find jurisdiction over an international law claim, then dismissing the complaint for failure to state a claim). 16 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 30708 (S.D.N.Y. 2003) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). 17 Conley v. Gibson, 355 U.S. 41, 47 (1957) (“[A]ll the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” (quoting FED. R. CIV. P. 8(a)(2))). When deciding a motion to dismiss, the federal courts accept as true all well-pleaded allegations of the complaint. “Because we review here a decision granting respondent’s motion to dismiss, we must accept as true all of the factual allegations contained in the complaint.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)). In addition, the Federal Rules of Civil Procedure make clear that on review of a motion to dismiss either for lack of subject matter jurisdiction or for failure to state a claim, the court should not review the merits of the claim. The Fila´rtiga language about a “review of the merits” must refer to a review of the allegations of the complaint, not the underlying merits of the claim. “Where jurisdiction is intertwined with merits, ‘the

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31

Whether the cause of action turns out to be “well founded in law and fact” . . . is beyond the scope of our threshold jurisdictional review. Thus the district court had subject matter jurisdiction under the [ATS] so long as plaintiffs alleged a nonfrivolous claim by an alien for a tort in violation of international law.18 Applied to ATS claims, these standard jurisdictional and pleading rules instruct courts reviewing motions to dismiss for lack of subject matter jurisdiction to review the complaint to determine whether the plaintiffs have alleged a violation of an international law norm that meets the Sosa standard.19 When reviewing a motion to dismiss for failure to state an ATS claim, courts should determine whether the facts alleged, if true, constitute a violation of that international law norm.20 Lower court decisions have not always been models of clarity on these issues. The fact that an allegation of a cognizable international law violation is a prerequisite to subject matter jurisdiction may make it difficult to separate a challenge to subject matter jurisdiction from an argument that the complaint does not state a claim. Mixing the two steps, however, is analytically unsound and risks requiring more from plaintiffs than the federal rules require. district court [must] assume[ ] the truth of the allegations in a complaint . . . unless controverted by undisputed facts in the record’ or treat the motion as a motion for summary judgment. . . . Accordingly, for purposes of assessing defendants’ jurisdictional attack, the court will assume the truth of the allegations set forth in plaintiffs’ first amended complaint.” Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1129-30 (C.D. Cal. 2002) (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987)), aff’d, Sarei v. Rio Tinto, PLC, 2007 WL 1079901, at * 2 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (“Because this case arises from a dismissal under Federal Rule of Civil Procedure 12(b)(6), we accept all facts alleged in the plaintiffs’ complaint as true and construe them in the light most favorable to the plaintiffs.”). 18 Sarei v. Rio Tinto, PLC, 2007 WL 1079901, at *4 (9th Cir. Apr. 12, 2007) (citations omitted), reh’g en banc granted 2007 WL 2389822. 19 Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 245 (2d Cir. 1986) (noting that the “extensive preliminary jurisdictional inquiry” referred to by Fila´rtiga “requires [the] court merely to examine the parameters of the law of nations, not to assess a plaintiff’s likelihood of prevailing on the merits”). 20 See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y. 1991) (“[T]he complaint must allege facts that, if true, would constitute a violation of the law of nations.”).

32 International Human Rights Litigation in U.S. Courts

B. THE SOURCE OF THE CAUSE OF ACTION IN AN ATS CASE In order to litigate a claim in federal court, plaintiffs must show both federal subject matter jurisdiction and a basis for the private right to sue or cause of action. Pre-Sosa cases developed two theories as to the source of the cause of action in ATS cases. Fila´rtiga held that the ATS affords federal jurisdiction over international law claims, viewing international law as an independent basis for a federal cause of action: “[W]e believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.”21 Other courts read the ATS as both affording federal jurisdiction and creating a cause of action. The Ninth Circuit, for example, held that the ATS “creates a cause of action for violations of specific, universal and obligatory international human rights standards.”22 Courts based this conclusion on the statutory language “committed in violation of the law of nations”: “The ‘violation’ language of section 1350 may be interpreted as explicitly granting a cause of action.”23 Critics, however, argued that the use of the term “cognizance” in the original statutory language and the placement of the provision in the largely jurisdictional judiciary act both indicated a purely jurisdictional grant.24 21

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 887 (2d Cir. 1980). In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995). See also Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir.), cert. denied, 519 U.S. 830 (1996) (statute “provid[es] both a private cause of action and a federal forum where aliens may seek redress for violations of international law.”); Xuncax v. Gramajo, 886 F. Supp. 162, 179 (D. Mass. 1995) (“§ 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law . . . without recourse to other law as a source of the cause of action.”). 23 Handel v. Artukovic, 601 F. Supp. 1421, 1427 (C.D. Cal. 1985). See also Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (“the ‘committed in violation’ language of the statute suggests that Congress did not intend to require an alien plaintiff to invoke a separate enabling statute as a precondition to relief under the Alien Tort Claims Act.”); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993) (“The plain language of the statute and the use of the words ‘committed in violation’ strongly implies that a well pled tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause of action].”). 24 See William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 479-80 (1986). 22

Analytic Framework

33

A related theory suggested that, in enacting the ATS, Congress delegated to the courts the power to develop federal common law remedies to redress torts in violation of international law. “Congress, of course, may enact a statute that confers on the federal courts jurisdiction over a particular class of cases while delegating to the courts the task of fashioning remedies that give effect to the federal policies underlying the statute.”25 Each of these theories, however, was criticized as inconsistent with the jurisprudential structure at the time the ATS was enacted: In the late 18th century, members of Congress would not have created a cause of action as part of the statute or even instructed the courts to recognize one, because they would have assumed that the courts would recognize claims for violations of common law without any further action by the legislature.26 The Supreme Court in Sosa resolved the earlier debates with an interpretation of the ATS that is true to the likely intent of its drafters. The Court first held that the ATS is jurisdictional and does not itself create a cause of action.27 But the Sosa Court also recognized that at the time of its enactment, Congress expected that claims could be brought for violations of the common law.28 The Court thus acknowledged that the search for a statutory cause of action is ahistorical, because the late-18th-century U.S. legal system understood that the common law provided a right to sue without the need for statutory authorization. Thus, the framers would have seen no need to “create” a cause of action for torts in violation of the law of nations: They would have assumed instead that a right to sue for such actions could be found in the common law.29 25 Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) (citing Textile Workers of Am. v. Lincoln Mills, 353 U.S. 448 (1957)). 26

Sosa v. Alvarez-Machain, 542 U.S. 692, 719 (2004).

27

Id. at 714.

28

The Court recognized that members of the first Congress were concerned with the consequences of violations of international law, and would not have “enacted the ATS only to leave it lying fallow indefinitely.” Id. at 719. 29

As the Court explained: Sosa would have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time. We think history and practice give the edge to this latter position.

34 International Human Rights Litigation in U.S. Courts

The Supreme Court concluded: [A]lthough the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.30 The Court then recognized that the ATS today works just as it did when enacted, granting federal subject matter jurisdiction over the “narrow class of international norms” that the federal courts recognize as stating common law causes of action.31 As an important foundation for this decision, the Sosa majority decisively rejected an argument prominent in the debate over the ATS in the preceding decade. Several scholars had argued that the federal courts no longer have the power to recognize common law causes of action for international law violations.32 They based this argument on a narrow reading of Erie Railroad Co. Id. at 714 (citing Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondents, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339), 2004 WL 419425, available at www.ccr.ny-org/humanrightsbook). This conclusion is buttressed by the handful of historical references to the statute. See Chapter 1 for discussion of Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795); Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (D. Pa.1793), and a 1795 opinion by Attorney General William Bradford, 1 Op. Atty. Gen. 57, 59 (1795). The Court based this conclusion in part on an analysis of the likely goals of the Congress that enacted the ATS, also discussed in Chapter 1. 30 Sosa v. Alvarez-Machain, 542 U.S. 692, 719, 724 (2004). 31 The claims actionable today under the ATS are those “of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Id. at 725. See Chapter 3 for a discussion of the standard by which the courts determine which violations fit within this definition. 32 This argument, developed by Professors Bradley and Goldsmith in a series of articles, has been strenuously debated. Compare Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997); Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 319, 327-30 (1997) with Harold Hongju Koh, Commentary, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66

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v. Tompkins, which rejected historical views of the general common law applied by federal courts.33 The Court in Sosa, however, held that the federal courts today maintain their traditional authority to recognize private claims to enforce international law norms.34 In rejecting the extreme interpretation of Erie, the Supreme Court majority recognized that post-Erie federal common law includes those aspects of the common law that are peculiarly within the power of the federal government and that international law was and remains within that area of federal control: Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. It would take some explaining to say now that federal courts FORDHAM L. REV. 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 FORDHAM L. REV. 393 (1997). Writing for three justices in dissent, Justice Scalia adopted the reasoning of Professors Bradley and Goldsmith. He argued that post-Erie changes in the understanding of the common law have deprived modern federal courts of the power to recognize common law claims derived from international law, a position rejected by the Sosa majority. Sosa v. Alvarez-Machain, 542 U.S. 692, 739-52 (2004) (Scalia, J., dissenting). 33 304 U.S. 64 (1938). In the pre-Erie legal system, federal courts interpreted and applied the general common law to the disputes that came before them even if otherwise governed by state law. Erie rejected the general common law, holding that all law was grounded in a particular sovereign, either the federal or state government. 34 “[N]o development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 72425 (2004). The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of § 1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Id. at 730-31.

36 International Human Rights Litigation in U.S. Courts

must avert their gaze entirely from any international norm intended to protect individuals.35 The Court thus held that the federal courts have the power to exercise their discretion to recognize federal common law claims for international law violations. Moreover, the Court found that the ATS indicates that Congress expected the courts to do so: not only did the First Congress “assume[] that federal courts could properly identify some international norms as enforceable in the exercise of § 1350 jurisdiction,” but they enacted the statute “on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations.”36 To conclude, the Supreme Court in Sosa recognized that the ATS provides federal subject matter jurisdiction over federal common law claims for a narrow set of international law violations. C. CHOICE OF LAW Determining what body of law governs particular issues in ATS cases is one of the most unsettled post-Sosa issues facing the lower courts. All ATS cases involve a violation of international law, with a cause of action based in federal common law. Federal common law crafts rules by choosing among multiple sources of law, including federal law, the laws of the forum state, and the laws of the place where violations occurred. As a result, international law, federal statutory law, federal common law, state law, and foreign law may all govern one or more ATS issues. Sosa clarified the central choice of law issues in ATS cases by holding: (1) the substantive violation is governed by international law; and (2) federal common law provides the cause of action and, therefore, governs 35 Id. at 729-30 (footnote omitted) (citing Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) (recognizing that “international disputes implicating . . . our relations with foreign nations” are one of the “narrow areas” in which “federal common law” continues to exist); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (“[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances”); The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.) (“[T]he Court is bound by the law of nations which is a part of the law of the land”). 36 Sosa v. Alvarez-Machain, 542 U.S. 692, 730, 731 n.19 (2004).

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non-substantive issues. As summarized by Professor William Casto, “The norm that defendant is alleged to have violated comes from international law, and domestic law supplies all other rules of decision.”37 Casto explains this distinction by reference to traditional tort law concepts: The new cause of action envisioned by Sosa is unintelligible unless the well-established distinction between rights and remedies is kept clearly in mind. The concept of a cause of action requires a plaintiff to establish that a defendant has violated a legal norm designed to protect the plaintiff and that the plaintiff is entitled to a remedy, which typically will be damages in ATS litigation. Under this traditional dichotomy, the norm that is enforced in ATS litigation comes from international law.38 The remedy, however, is “a purely domestic tort remedy,” governed by “traditional, well-established concepts of domestic, federal common law.”39 This framework is consistent with the general structure of the international legal system. As noted by the Supreme Court over 200 years ago: [T]he law of nations, or of nature and reason, is . . . enforced by . . . the municipal law of the country; which latter may . . . facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered.40 Today, as well as in the late-18th century, the international system relies on domestic courts to provide the rules necessary to resolve complex claims. International law does not provide the level of detail necessary to resolve the many ancillary issues triggered by domestic litigation.41 As stated by the district court awarding damages in Fila´rtiga after remand from the Second Circuit: 37

William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 RUTGERS L.J. 635, 641 (2006). 38 Id. at 638-39. 39 Id. at 639. 40 Ross v. Rittenhouse, 2 U.S. (2 Dall.) 160, 162 (1792). 41 The Xuncax court explained the relationship between domestic courts and international norms: While it is demonstrably possible for nations to reach some consensus on a binding set of principles, it is both unnecessary and implausible to suppose that, with their multiplicity of legal systems, these diverse nations should also be expected or required to reach consensus on the types of actions that should be made available in their respective courts to implement those principles. Xuncax v. Gramajo, 886 F. Supp. 162, 180 (D. Mass. 1995).

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The international law prohibiting torture established the standard and referred to the national states the task of enforcing it. By enacting Section 1350 Congress entrusted that task to the federal courts and gave them power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into United States common law.42 The Supreme Court validated this approach in Sosa, holding that the cause of action in ATS cases is governed by federal common law. ATS decisions must now resolve two interrelated choice of law questions. First, the courts must determine which issues fall within the substantive definition of the violation, and are therefore governed by international law, and which issues are governed by federal common law. As discussed at length in Chapter 10, many cases, particularly against corporations, confront the issue of whether the standards for complicity liability such as aiding and abetting are governed by international or domestic rules. Second, as to the issues governed by federal common law, the courts must apply federal choice of law principles to determine what law should govern. Federal common law choice of law rules instruct the federal courts to look to multiple bodies of law to borrow or derive the most appropriate rule.43 Thus, the court at times should borrow rules from varied sources, including federal, international, state, and foreign law, while at other times it should fashion distinctly federal common law rules. No one source will be appropriate for all issues. One hallmark of federal common law is the ability to choose among the 42 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 863 (E.D.N.Y. 1984) (on remand). “The international law described by the Court of Appeals does not ordain detailed remedies but sets forth norms. But plainly international ‘law’ does not consist of mere benevolent yearnings never to be given effect.” Id. 43 See CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 4518 (current through 2006 update) (footnotes omitted): Federal courts may look to a number of sources to determine the principles of law that should be applied to the case before it: pre-Erie Railroad Company v. Tompkins [304 U.S. 64 (1938)] principles of “federal general common law,” generally recognized common-law principles of the subject-matter area involved in the case, considerations of what rule is best designed to implement the underlying federal policy or statute involved in the litigation, general considerations of equity jurisprudence or notions of systemic or party convenience, analogous federal statutes, and the content of the forum state’s law. The Ninth and Sixth Circuits also have drawn from the Restatement (Second) of Conflict of Laws to determine what federal common law requires.

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available sources of law for those best suited to a particular decision. Determining which rule to apply requires a flexible analysis of the federal interests involved, including the intent of Congress and the need for uniformity, if any.44 Several courts have applied the federal common law choice of law reflected in the Restatement (Second) of Conflict of Laws (the Restatement).45 Fila´rtiga v. Pen˜a-Irala, the first of the modern ATS cases, looked to the Restatement as part of its federal common law approach when faced with the issue of whether to award punitive damages to plaintiffs.46 Citing the Restatement, the court found that, while it was appropriate to consider the interests of Paraguay, Paraguayan law should only be applied to the extent that it did “not inhibit the appropriate enforcement of the applicable law or conflict with the public policy of the United States.”47 The court awarded punitive damages even though such damages were not recoverable under the Paraguayan Civil Code; it justified the decision on public policy grounds and stated that the “manifest objectives” of the international prohibition on torture “can only be vindicated by imposing punitive damages.”48 The Supreme Court in Sosa recognized that federal common law provides the cause of action in ATS claims, thus ratifying the Fila´rtiga approach. 44

See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 6.1 (4th ed. 2003). RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1969) (current through June 2006). Section 6 provides: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. 46 577 F. Supp. 806, 863 (E.D.N.Y. 1984) (on remand) (stating that “[t]he common law of the United States includes, of course, the principles collected under the rubric of conflict of laws”). 47 Id. at 863-64. 48 Id. at 864. See discussion of punitive damages in Chapter 21, Section A. 45

40 International Human Rights Litigation in U.S. Courts

Choice of law questions arise in several contexts in ATS cases, including the statute of limitations, standing to sue, damages, and abatement.49 Each of these is discussed in subsequent chapters. In addition, various doctrines concerning corporate liability raise choice of law analysis, including parent-subsidiary liability and complicity liability.50 While no court has yet spoken definitively on this point, it appears that, post-Sosa, it is inappropriate to resolve issues arising in ATS cases by reference to the conflict of laws rules of any particular forum state. This is one of the issues currently on appeal in Presbyterian Church v. Talisman Energy, Inc., in which the court applied New York choice of law principles rather than federal common law choice of law principles to questions of agency liability for the defendant corporation.51 New York choice of law principles included a presumption favoring application of the law of the locus of the tort and the domicile of most of the plaintiffs—in that case, the Sudan.52 The use of that state’s choice of law rules led to a result that failed to consider the federal interests in furthering the remedial purpose of the ATS. The court’s decision in Presbyterian Church is markedly different from the decision in Doe v. Saravia, which, citing Fila´rtiga, adopted more of a federal common law approach.53 Rather than finding that it was bound to apply El Salvadoran law, the court in Saravia found that it had the authority to disregard El Salvadoran law where it would be contrary to the interests of federal law or international law.54 It is clear that after Sosa, the threshold “law of nations” violation is governed by international law. Though there is some diversity of opinion in the post-Sosa cases, other issues, like the applicable theories of liability for those international norms, ought to be defined by a federal common law analysis. 49 See, e.g., In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994) (abatement); Estate of Cabello v. Ferna´ndez-Larios, 157 F. Supp. 2d 1345 (S.D. Fla. 2001) (standing to sue); Tachiona v. Mugabe, 234 F. Supp. 2d 401 (S.D.N.Y. 2002) (damages); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (standing to sue); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (statute of limitations). 50 Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 51 Id. 52 Id. at 681-83. 53 348 F. Supp. 2d 1112 (E.D. Cal. 2004). 54 Id. at 1159.

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However, in the absence of a definitive decision directing the application of a federal common law approach to choice of law principles, litigators should still be prepared to analyze other ancillary issues (e.g., standing to sue, abatement, damages) under a state law choice of law analysis.55 D. CONSTITUTIONALITY The question as to whether Congress had the constitutional power to grant the federal courts authority over claims between aliens for violations of international law has been put to rest by the Supreme Court decision in Sosa, which did not even find it necessary to address the issue. The question drew attention because subject matter jurisdiction over ATS suits against non-citizen defendants cannot be based on the constitutional authorization for diversity jurisdiction, which does not reach claims between two aliens.56 The constitutional authority for the ATS comes instead from the federal question jurisdiction of Article III of the Constitution, which authorizes Congress to grant the federal courts jurisdiction over suits “arising under the Constitution, laws, or treaties of the United States.”57 Two theories apply this category of jurisdiction to ATS claims. First, the term “laws of the United States,” as used in Article III, includes the common 55

Additionally, while ATS claims rely on federal common law choice of law principles, pendant state law claims in ATS cases are still governed by the forum state’s choice of law rules. See Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (finding that Massachusetts choice of law rules governed the plaintiff’s non-federal claims). 56 The diversity clause authorizes federal jurisdiction over suits between a citizen of a state and a “citizen or subject of a foreign state,” U.S. CONST. art. III, § 2, cl. 1, not between two aliens. Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809) (holding that the Constitution does not extend federal court jurisdiction to suits between aliens). 57 The plaintiffs in Fila ´rtiga also argued that the ATS could be sustained constitutionally as an exercise of congressional power to “define and punish offenses against the law of nations.” Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 886 (2d Cir. 1980) (citing U.S. CONST. art. I, § 8, cl. 10). The Second Circuit found the argument plausible, but declined to rely on it: While such a reading is possible . . . we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law. Id. at 887. For a full discussion of the “define and punish clause,” see Beth Stephens, Federalism and Foreign Affairs: Congress’ Power to “Define and Punish . . . Offenses Against the Law of Nations,” 42 WM. & MARY L. REV. 447 (2000).

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law.58 Sosa clarified that ATS claims are federal common law causes of action; such claims therefore arise under the laws of the United States within the meaning of Article III. Second, international law is “part of our law” for the purposes of this clause of the Constitution. Therefore, international law claims also arise under the laws of the United States.59 E. EXTRATERRITORIALITY Even after the Supreme Court’s decision in Sosa,60 the Department of Justice continued to assert that the ATS does not apply to purely extraterritorial claims such as those that arise in most ATS cases. The administration of President George W. Bush has argued that the original purpose of the ATS was to provide a forum for remedying violations of the law of nations occurring within the jurisdiction of the United States and that the statute should therefore be limited to such cases.61 The Justice Department also argued that the Supreme Court’s decision in Sosa supports limiting the jurisdiction of the ATS, because Sosa recognized the danger of permitting suits that sit in judgment of a foreign government’s treatment of its own citizens.62 These arguments have yet to resonate in any ATS decisions. The Bush Department of Justice made these very arguments to the Supreme Court in an amicus brief in Sosa, arguing that the ATS did not authorize extraterritorial jurisdiction.63 The Court’s decision in Sosa, however, pointedly ignored the government’s reasoning on this point. Furthermore, the Court’s statement that “modern international law is very much concerned with” limits on foreign government’s treatment of their own citizens, cannot be squared with the U.S. government’s argument that the ATS is 58 See Illinois v. City of Milwaukee, 406 U.S. 91, 99-100 (1972) (claims founded upon federal common law arise under the “laws” of the United States). 59 William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 VA. J. INT’L L. 687, 701-11 (2002). 60 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 61 Brief for the United States as Amicus Curiae Supporting Panel Rehearing or Rehearing En Banc, at 11-12, Sarei v. Rio Tinto, PLC, 2007 WL 1079901, Civ. Nos. 0256256, 02-56390 (9th Cir. Apr. 12, 2007), available at www.ccr-ny.org/humanrightsbook. 62 Id. at 12. 63 Brief for the United States as Respondent Supporting Petitioner, at 46-50, Sosa v. Alvarez, 542 U.S. 692 (2004) (No. 03-339), 2004 WL 182581, available at www.ccrny.org/humanrightsbook.

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not intended to apply to extraterritorial claims.64 The Court in Sosa explicitly endorsed several lower court decisions that exercised jurisdiction over ATS claims brought by foreign nationals against officials of their own governments for abuses committed within their own states.65 Fila´rtiga, for instance, involved a suit by a Paraguayan plaintiff against a Paraguayan official for abuses committed in Paraguay.66 Similarly, In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos) involved a suit by a Filipino plaintiff against a Filipino official for abuses committed in the Philippines.67 That the ATS would apply to torts outside of the territory of the United States is hardly surprising. Courts of general jurisdiction have long exercised jurisdiction over torts between aliens arising abroad.68 The ATS simply provides jurisdiction for federal courts to hear such claims when they involve torts in violation of the law of nations. If federal courts did not have this ability, the claims would be actionable only in state courts, even if important questions of international law were concerned. In order to avoid the prospect of multiple and inconsistent interpretations of international law, the ATS provided a federal forum for that limited subset of transitory torts that also involve a violation of the law of nations or a treaty of the United States.69 64

Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). Id. at 731-32. 66 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980), cited in Sosa v. AlvarezMachain, 542 U.S. 692, 725, 731 (2004). 67 25 F.3d 1467, 1475 (9th Cir. 1994), cited in Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 68 Civil actions in tort have long been considered transitory, in that the tortfeasor’s wrongful act created an obligation to make reparations that followed him across national boundaries and was enforceable wherever he was found. See McKenna v. Fisk, 42 U.S. 241, 248-49 (1843). Indeed, the author of the ATS, Oliver Ellsworth, had himself applied the transitory tort doctrine in 1786, while a sitting state court judge. Stoddard v. Bird, 1 Kirby 65, 68, 1786 WL 19, at 2 (Conn. 1786). The Supreme Court reaffirmed personal jurisdiction over transitory tortfeasors in Burnham v. Superior Court of California, 495 U.S. 604 (1990). 69 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964) (The ATS reflects “a concern for uniformity in this country’s dealings with foreign nations and . . . a desire to give matters of international significance to the jurisdiction of federal institutions.”). 65

CHAPTER 3 PLAINTIFFS, DEFENDANTS, AND VIOLATIONS IN ALIEN TORT STATUTE (ATS) SUITS

Many of the issues determining who can sue and be sued in litigation under the Alien Tort Statute (ATS)1 are similar to those raised by human rights lawsuits based on other statutory grounds. This chapter starts with a brief overview of the ATS rules for plaintiffs and defendants that points out issues unique to ATS claims. Both topics are discussed at greater length in later chapters, as they apply to all human rights claims. The bulk of this chapter addresses a standard unique to the ATS—the limitation of jurisdiction to claims for “a tort only, committed in violation of the law of nations.” The final section offers an introduction to the methodology necessary to prove that an international norm satisfies that ATS standard. A. PLAINTIFFS AND DEFENDANTS IN ATS CASES 1.

Who Can Sue

The ATS is the only grounds for human rights litigation that limits human rights plaintiffs to “aliens”—non-citizens of the United States.2 All of the other statutes either apply equally to citizens and non-citizens or are specifically limited to nationals of the United States. None of the statutes, including the ATS, require that the plaintiff be physically present in the United States to file a lawsuit. The ATS gives no guidance as to standing to sue and the required relationship between the victim and the alleged violation.3 Successful cases have 1

28 U.S.C. § 1350.

2

In a case filed by a former domestic employee alleging involuntary servitude, the court recognized that the ATS requires only that a plaintiff be a non-citizen of the United States and that the plaintiff’s immigration status was therefore irrelevant. Topo v. Dhir, 210 F.R.D. 76, 78-79 (S.D.N.Y. 2002). Noting that the defendants did not dispute the fact that she was not a citizen, the magistrate granted a protective order blocking the defendants from inquiring into the plaintiff’s immigration status. Id. at 79. 3

Given that the ATS authorizes “tort” suits, general tort principles such as proximate cause may apply. See, e.g., Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1307 (C.D. Cal. 45

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been litigated by survivors of abuses, representatives of the estate of a deceased victim, and beneficiaries of the deceased in a wrongful death action. To decide whether a plaintiff has standing to sue, the courts in ATS cases turn to federal choice of law principles and often decide to apply the rules governing the Torture Victim Protection Act (TVPA), “the most analogous federal statute.”4 These rules are discussed in Chapter 9. 2.

Who Can Be Sued

Alone among the various human rights statutes, the ATS gives no explicit statutory guidance as to who can be sued. In Fila´rtiga v. Pen˜a-Irala, the first in the modern line of ATS cases, plaintiffs sued the Paraguayan police officer who had personally tortured their relative and who was living in the United States at the time of the suit.5 These facts exemplify the most straightforward application of the ATS: a lawsuit against (1) an individual, (2) who physically committed an international tort, (3) while acting under color of law of a foreign government recognized by the United States, (4) was served with process while living in the United States, and (5) lacked any basis for a successful claim of immunity or other applicable defenses.6 Subsequent ATS litigation has involved more varied scenarios, such as claims against corporate and government defendants; private actors and officials of unrecognized regimes; individuals sued while passing through the jurisdiction or foreign businesses with contacts to the United States; command responsibility and aiding and abetting liability; and multiple claims of immunity. Cases also involve human rights violations committed in the United States by both private actors and officials of the federal and local governments. The complex issues raised by lawsuits against different categories of defendants and by their varied relationships to the human rights violations are analyzed in Chapters 10-12, while immunities and other defenses are covered in Chapters 13-15. 2000). See Chapter 1, note 66, for full explanation of the series of decisions in the Unocal case. 4 Xuncax v. Gramajo, 886 F. Supp. 162, 191 (D. Mass. 1995). 5 630 F.2d 876 (2d Cir. 1980). 6 Each of these issues are discussed in subsequent chapters.

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B. HUMAN RIGHTS VIOLATIONS ACTIONABLE UNDER THE ATS Each of the human rights statutes enacted since 1992 lists specific actionable violations and provides detailed definitions of each of them.7 The TVPA, for example, creates causes of action for both torture and extrajudicial killing and carefully defines each violation.8 By contrast, the ATS provides jurisdiction over a claim for “a tort only, committed in violation of the law of nations or a treaty of the United States.” This terminology is unique to the ATS, since it is used in no other statute or international law document. While the exact reach of these few words has led to extensive debate, modern courts since Fila´rtiga9 have been remarkably consistent in applying the statute to a short list of egregious human rights abuses. The Supreme Court in Sosa10 provided a formulation of the standard that is slightly different from that used by earlier courts but that closely tracks the criteria developed in prior cases. It thereby leaves the early precedents substantially intact. As an initial matter, the proper interpretation of “a tort . . . in violation of the law of nations” may arise in two separate challenges to an ATS claim. First, as discussed in Chapter 2, the federal courts have subject matter jurisdiction under the ATS only if the plaintiff alleges a violation of an international norm that meets the statute’s standard. Since a federal court must dismiss a case if it lacks subject matter jurisdiction, the court will consider this issue even in the absence of a motion from the defendant.11 Second, in order to state a claim for relief that will survive a motion to dismiss, plaintiffs must allege facts that constitute a violation of those norms. Thus, analysis of whether an alleged violation meets the ATS standard necessarily considers both whether the international norm at issue meets the ATS test and whether the specific conduct alleged constitutes a violation of that norm. It will be far easier to demonstrate that a particular norm fits within the ATS standard if the underlying violation has been the subject of prior rulings. However, courts will not necessarily rely on prior cases without question, 7

See Chapters 4-6. TVPA, §§ 3(a) (extrajudicial killing), 3(b) (torture). The TVPA definitions of torture and extrajudicial killing are discussed in Chapter 7, Sections D.1 and D.2. 9 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 10 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 11 FED. R. CIV. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). 8

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particularly if they pre-date Sosa. In the absence of a controlling case with similar facts in a given circuit, litigators should not take for granted any court’s understanding of international law violations and their relationship to the ATS.12 In addition, the statute permits plaintiffs to argue for the acceptance of new violations, even under the Sosa Court’s cautionary approach. Understanding the process by which torts have been recognized as within the reach of the statute is crucial to a persuasive discussion of both traditional and novel claims. This section analyzes what constitutes a tort in violation of the law of nations and the process by which the courts determine whether an alleged violation meets that standard. Chapter 7 provides detailed discussions of the most significant international law violations. Chapter 8 discusses the second clause of the ATS, which provides jurisdiction over a tort in violation of a treaty. 1.

From Fila´rtiga to Sosa: Universal, Obligatory, and Definable

The Fila´rtiga court’s analysis of a claim of torture provided a model for future application of the ATS. First, the court noted that the violation was of international concern.13 Second, the prohibition against torture “command[ed] the general assent of civilized nations,”14 leading the court to conclude that torture violated “universally accepted norms of the international law of human rights.”15 Finally, the prohibition was “clear and unambiguous.”16 In the 24 years after Fila´rtiga, the courts developed a three-pronged test, derived from the Fila´rtiga analysis, holding that claims triggered ATS jurisdiction if they alleged violations of “universal, obligatory, and definable” international law norms. Judge Jensen first enunciated this standard in Forti v. 12 For that reason, litigators should consult international law experts before filing an ATS case and be prepared to provide the court with extensive documentation of their international law claims from the outset of the litigation. 13 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 880 (2d Cir. 1980). “It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute.” Id. at 888. Thus, the fact that every nation outlaws theft, does not incorporate the “Eighth Commandment, ‘Thou Shalt not steal’. . . [into] the law of nations.” Id. (quoting IIT v. Vencap, 519 F.2d 1001, 1015 (2d Cir. 1975)). 14 Id. at 881. 15 Id. at 878, 881-85. 16 Id. at 884.

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Suarez-Mason,17 which stated that torts actionable under the ATS are “characterized by universal consensus in the international community as to their binding status and their content. That is, they are universal, definable, and obligatory international norms.”18 •

“Universal” does not require that every nation agree that a particular tort violates international law. As Forti II states, “To meet this burden, plaintiffs need not establish unanimity among nations. Rather, they must show a general recognition among states that a specific practice is prohibited.”19 • “Definable” requires an interpretation sufficiently precise so that the conduct outlawed is clear, not vague or ambiguous. It is not necessary, however, that there be a consensus about every detail of the definition: it is enough that there be agreement that the conduct in question violates the international norm.20 • “Obligatory” means that the prohibition is considered a requirement, not just a desirable goal that can be sacrificed to more pressing concerns.21 This formulation was adopted by international law scholars in expert affidavits submitted in subsequent cases.22 While the three criteria are a shorthand, they 17

672 F. Supp. 1531 (N.D. Cal. 1987) (Forti I); Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) (on reconsideration) (Forti II). 18

Forti v. Suarez-Mason, 672 F. Supp. 1531, 1540 (N.D. Cal. 1987) (emphasis added). This formulation is similar to that developed in Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 87-90 (1981). The article lists four criteria, three that closely resemble those adopted by Forti I, plus a requirement that the tort “be an object of concerted international attention,” thereby distinguishing torture and other human rights violations from theft or other wrongs which are regulated by each state. Id. at 87-88 (citing Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 888 (2d Cir. 1980)). 19

Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D. Cal. 1988). “It is not necessary that every aspect of what might comprise [an international tort] be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law.” Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995). 20

21

Blum and Steinhardt look to the number of international agreements and the number of states which have joined them as evidence that a norm is considered genuinely obligatory. Blum & Steinhardt, supra note 18, at 89. 22 See, e.g., Affidavit of International Law Scholars, submitted in Ortiz v. Gramajo, Civ. No. 91-11612 (D. Mass. filed June 13, 1991), consolidated for decision sub nom.

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provide a useful standard for analyzing whether a particular violation fits within the scope of the ATS. At the time of Sosa, lower courts had recognized at least nine violations that triggered ATCA jurisdiction: genocide, torture, summary execution, disappearance, arbitrary detention, war crimes, crimes against humanity, slavery, and cruel, inhuman, or degrading treatment.23 As discussed below, the Sosa standard is virtually identical to that applied by the prior cases. As a result, human rights violations that were well established as triggering ATS jurisdiction before Sosa are likely to face little opposition when considered under the slightly revised Sosa test. 2.

The Sosa Standard

The Supreme Court in Sosa v. Alvarez-Machain24 developed a test for ATS violations derived from the likely intent of the statute, prior Court discussions of international law, and lower court ATS decisions. As discussed in Chapter 1, Sosa held that the ATS is based on the understanding that federal courts will recognize a common law cause of action for “a very limited set”25 of violations of international law. In the late 18th century, this limited set of violations encompassed those “admitting of a judicial remedy and at the same time threatening serious consequences in international affairs.”26 The Court concluded that the ATS “is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”27 a.

Widely Accepted and Clearly Defined

The Supreme Court instructed the judiciary to apply the statute just as Congress intended in 1789, by recognizing common law causes of action for Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), available at www.ccr-ny.org/ humanrightsbook. 23 See discussion of each violation in Chapter 7. 24 542 U.S. 692 (2004). 25 Id. at 720. 26 Id. at 715. 27 Id. at 724. The Court concluded that the violations “[u]ppermost in the legislative mind” when the ATS was enacted were three offenses described by William Blackstone in his famous treatise: violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 715 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *68).

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international law violations comparable to those that triggered the statute when it was enacted: [C]ourts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.28 The Court presented this standard—international norms with widespread acceptance and a clear definition—as a cautious test intended to guide federal court discretion. While the Court declined to “close the door to further independent judicial recognition of actionable international norms,” the justices cautioned that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”29 Sosa cited the definition of piracy in United States v. Smith30 as a model of the specificity needed for modern application of the ATS: [F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted. See, e.g., United States v. Smith, [18 U.S. at 163-80 n. a] (illustrating the specificity with which the law of nations defined piracy).31 The defendant in Smith, convicted of piracy, challenged the constitutionality of a statute that punished “the crime of piracy, as defined by the law of nations.”32 On behalf of the alleged pirate, Daniel Webster argued that “[t]he writers on public law do not define the crime of piracy with precision and certainty.”33 Framing the issue in terms virtually identical to the issue triggered by modern ATS cases, the Supreme Court asked “whether the crime of piracy is defined by the law of nations with reasonable certainty.”34 The Court looked to scholarship, custom, and domestic judicial opinions to determine the international definition 28

Id. at 725. Id. at 729. 30 18 U.S. (5 Wheat.) 153 (1820). 31 Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 32 United States v. Smith, 18 U.S. (5 Wheat.) 153, 153-54 (1820) (quoting Act of March 3, 1819, ch. 76, § 5, 3 Stat. 513 (1819)). 33 Id. at 157. 34 Id. at 160. 29

52 International Human Rights Litigation in U.S. Courts

of piracy.35 After reviewing these multiple sources at great length, the Court recognized a general consensus that piracy was a “crime of a settled and determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi, is piracy.”36 [W]hether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offence against the law of nations, and that its true definition by that law is robbery upon the sea. . . . We have, therefore, no hesitation in declaring, that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined by the fifth section of the act of 1819.37 The Court therefore concluded that defining the crime of piracy by reference to the law of nations was sufficient and constitutional. As a model for the modern application of the law of nations in the ATS, it is notable that Smith did not require uniformity as to all aspects of the definition of piracy. Despite some “diversity of definitions, in other respects,” it was sufficient that the commentators agreed on the core definition of piracy as “robbery . . . upon the sea.” Modern courts have recognized that a clearly defined norm does not require that all aspects of the prohibition be clear. Applied to allegations of cruel, inhuman, or degrading treatment, for example, courts have held that it is sufficient if the conduct complained of by the plaintiff falls within a clearly defined norm of international law.38 35 Id. at 160-61 (“What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.”). 36 Id. at 161. Animus furandi is defined by Webster’s online dictionary as “the intention to steal.” Webster’s online dictionary, available at http://www.webster-dictio nary.org/definition/Animus+furandi. 37 38

United States v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820).

See, e.g., Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1322 (N.D. Cal. 2004) (“The fact that there may be doubt at the margins—a fact that inheres in any definition—does not negate the essence and application of that definition in clear cases.”); Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (“It is not necessary that every aspect of what might comprise a standard such as ‘cruel, inhuman or degrading treatment’ be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law, any more than it is necessary to define all acts that may constitute ‘torture’ or ‘arbitrary detention’ in order to recognize certain conduct as actionable misconduct under that rubric.”).

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The Sosa Court also held that a general consensus about an international prohibition will be insufficient if it is so imprecise that the plaintiff cannot show what behavior falls within it. Thus, the Court in Sosa recognized a widespread international consensus prohibiting arbitrary detention, but the Court noted that the consensus was at such “a high level of generality”39 that it could be difficult to apply in particular cases: [A]lthough it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone’s three common law offenses.40 But the Court limited its holding to a finding that the particular facts alleged by Alvarez did not fall within internationally accepted norm. As characterized by the Court, Alvarez argued that an arrest would violate international law if “exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances.”41 The Supreme Court rejected this “broad” definition of arbitrary arrest, noting that its “implications would be breathtaking.”42 The Court thereby held that the Alvarez detention did not This point is also discussed both in Chapter 7, Section B, which analyzes the framework for finding violations actionable under the ATS, and in specific sections within that chapter. 39

Sosa v. Alvarez-Machain, 542 U.S. 692, 737 n.27 (2004).

40

Id. at 737.

41

Id. at 736. Alvarez disputed this characterization of the mistreatment he experienced: Professor Steinhardt, one of Alvarez-Machain’s counsel, described the Supreme Court’s discussion of the facts of the case as “a strategic recharacterization of Alvarez-Machain’s claim,” presenting a “strawman version” of the claimed international law violation which was easily dismissed. Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REV. 2241, 2253 (2004). As a result of this “recharacterization” of the facts of the case, the Sosa holding is quite narrow, and easily distinguished from lower court decisions finding far more egregious conduct actionable under the ATS. 42 Sosa v. Alvarez-Machain, 542 U.S. 692, 736 (2004). The Court held that a violation of a binding international norm would require conduct more egregious than a mere violation of domestic arrest procedures: Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. . . . In any event, the label would never fit the reckless policeman who

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trigger ATS jurisdiction: “It is enough to hold that 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.”43 The Court’s narrow ruling leaves open for future litigation the issue of when a detention might satisfy the Sosa requirement of a violation of a widely accepted, clearly defined international law norm.44 b.

Sosa’s Cautionary Principles

The Sosa decision is replete with cautionary language. As the Court explained, “A series of reasons argue for judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the early statute.”45 The first two reasons reflect changes since 1789 in “the prevailing conception of the common law” and “an equally significant rethinking of the role of the federal courts in making it.”46 In this more positivist time, the general common law is no longer seen as a common body of overarching law applicable to all, and the federal courts no longer apply that general common law. The remaining reasons reflect separation-of-powers concerns: the “decision to create a private right of action is one better left to legislative judgment in the great majority of cases.”47 Given that ATS claims involve international law, the courts should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”48 Finally, “We have no congressional mandate to seek out and define new and debatable violations of the law of nations.”49 The Court concludes that botches his warrant, even though that same officer might pay damages under municipal law. Id. at 737. Thus, as discussed in Chapter 7, Section E.6, Sosa does not preclude ATS claims for arbitrary arrest and detention based on more egregious facts such as a longer detention, mistreatment during the detention, and/or a failure to bring the detainee before competent authorities. 43 Id. at 738. 44 See discussion of arbitrary detention in Chapter 7, Section E.6. 45 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). 46 Id. at 725-26. 47 Id. at 727. 48 Id. 49 Id. at 728.

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“[t]hese reasons argue for great caution in adapting the law of nations to private rights.”50 This caution is reflected in the Sosa Court’s definition of the narrow set of claims considered actionable under the ATS. The door is ajar for ATS litigation, but subject to “vigilant doorkeeping.”51 Only “a very limited category,” a “modest number,” a “narrow class” of claims trigger ATS jurisdiction.52 The stringent requirements of international acceptance and clear definition ensure that only a small number of the most egregious violations will trigger ATS jurisdiction. The logical relationship between the Court’s discussion of the reasons for caution and its narrow definition of actionable ATS claims bears further emphasis. The Court analyzes these “reasons . . . for judicial caution” in a subsection that declares the standard: [T]here are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.53 The cautions are built into the Sosa standard: Because the courts should exercise their common law discretionary powers with caution, they should recognize ATS claims only for violations that meet the Court’s stringent standard. This logic reflects the views expressed by the executive branch in an amicus brief submitted to the Second Circuit in Fila´rtiga v. Pen˜a-Irala: [B]efore entertaining a suit alleging a violation of human rights, a court must first conclude that there is a consensus in the international community that the right is protected and that there is a widely shared understanding of the scope of this protection. When these conditions have been satisfied, there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage 50 51 52 53

Id. Id. at 729. Id. at 712, 724, 729. Id. at 725.

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the credibility of our nation’s commitment to the protection of human rights.54 A claim that satisfies the requirements of widespread acceptance and clear definition will not trigger foreign policy concerns. As a result, each ATS claim does not need to be subjected to an independent review of its impact on these assorted concerns: The Court took these issues into consideration in its formulation of the narrow ATS standard. c.

Practical Consequences

Some defendants have argued that Sosa requires that ATS claims meet a two-tier test.55 Under this approach, plaintiffs would first be required to show that the norm relied upon is widely accepted and clearly defined, and, second, the court would then evaluate whether the “practical consequences” set forth in Sosa warrant the creation of a cause of action in that particular case or category of cases.56 In support of this argument, defendants rely on the Sosa Court’s statement that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.”57 The Court’s analysis in Sosa, however, makes clear that it is concerned with the practical consequences of applying an indefinite, loosely defined norm, which could lead to ATS claims based on minor or even technical violations of domestic rules. When a court decides that a claim falls within the widely accepted, clearly defined core of an actionable norm, that decision has already incorporated an evaluation of “practical consequences.” There is no need for a second step.58 54

Brief for the United States as Amici Curiae, at 22, Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980), 1980 WL 340146 (footnote omitted), available at www.ccr-ny.org/ humanrightsbook. 55 See, e.g., Mujica v. Occidental Petroleum, 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (appeal pending). 56 Id. at 1181-82. 57 Sosa v. Alvarez-Machain, 542 U.S. 692, 732-33 (2004). 58 For example, claims of cruel, inhuman, and degrading treatment are actionable if they fall within a widely accepted, clearly defined core of that norm, while a court might decline to recognize claims based on acts that are at the less well-defined periphery of the definition because of the practical consequences such recognition would entail.

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In Sosa, the Court declined to accept that what it characterized as “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment,” was a violation of well-defined customary international law.59 The practical consequences of recognizing such a norm could have led to a flood of false arrest cases being brought under the ATS, the implications of which, the Court found, would be “breathtaking.”60 There is little doubt, however, that a plaintiff’s claim that he or she had been kept in jail for an extended period of time without access to a judicial process would fall within the core definition of prolonged, arbitrary detention.61 Courts applying widely accepted, clearly defined norms would have no cause to analyze the practical consequences of adjudicating a claim within the core definition of a such a norm. It is also important to underscore that the practical consequences of recognizing the viability of a norm under the ATS should not be case specific. If particular conduct is recognized as cruel, inhuman, and degrading treatment in one case and found actionable under Sosa, the same conduct should be actionable in all other contexts, even if the application of the norm in any particular case might raise other practical difficulties. Case-specific practical difficulties should be addressed through the application of well-established doctrines like the political question doctrine.62 d.

The Continuing Vitality of Pre-Sosa ATS Decisions

The stern admonitions of the Sosa opinion were not directed at wayward lower courts that had strayed from the appropriately narrow understanding of their common law powers. To the contrary, the lower courts had applied the ATS narrowly and with great caution. As a result, Sosa did not disapprove of any of the pre-Sosa ATS decisions. Sosa recognized that its standard—widespread acceptance and clear definition—was similar to that applied by the lower courts, starting with Fila´rtiga. Fila´rtiga held that an actionable norm under the ATS must “command the ‘general assent of civilized nations’ ”63 and be capable of a “clear and 59 60 61 62 63

Sosa v. Alvarez-Machain, 542 U.S. 692, 733 (2004). Id. at 736. See Chapter 7, Section E.6. See the doctrines discussed in Chapter 13. Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 881 (2d Cir. 1980).

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unambiguous” definition,64 identical to Sosa’s requirement of widespread acceptance by civilized nations and a clear definition. Both formulations are based on a 1900 Supreme Court case, The Paquete Habana, which recognized that a binding international law norm must command “the general assent of civilized nations” and constitute “a settled rule of international law.”65 Recognizing the similar approaches, Sosa cited with approval the key lower court decisions defining the reach of the ATS: This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. See Fila´rtiga, supra, at 890 (“(F)or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind”); Tel-Oren, supra, at 781 (Edwards, J., concurring)[66 ] (suggesting that the “limits of section 1350’s reach” be defined by “a handful of heinous actions—each of which violates definable, universal and obligatory norms”); see also In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 [9th Cir. 1994] (“Actionable violations of international law must be of a norm that is specific, universal, and obligatory”).67 Sosa thus placed its standard squarely within the framework of the universal, obligatory, and definable standard applied by most of the post-Fila´rtiga ATS cases. Indeed, the only decision overruled by Sosa was the lower court decision in Sosa itself. In that decision, the Ninth Circuit sitting en banc split six-five on the application of the universal, obligatory, and definable standard to Alvarez. The facts of Alvarez’s abuse, as the Supreme Court read the record, were far less than those found to trigger ATS jurisdiction in past cases.68 Justice Scalia 64

Id. at 884. 175 U.S. 677, 694 (1900). Fila´rtiga relied heavily on The Paquete Habana’s approach to international law: The requirement that a rule command the “general assent of civilized nations” to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law. Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 881 (2d Cir. 1980). 65

66

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (Edwards, J., concurring). 67

Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). The district court dismissed Alvarez’s claims that he had been tortured and subjected to other cruel treatment, finding that his claims of abuse were not credible and awarding only $25,000 in damages based on the 24 hours he was held in detention in Mexico 68

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correctly recognized that the majority endorsed the same standard applied by the lower courts to date, including by the Ninth Circuit in this very case: “[T]he verbal formula it applied is the same verbal formula that the Court explicitly endorses.”69 Given that the Sosa decision both offers a standard that is almost identical to the universal, obligatory, and definable test, and endorses decisions applying that standard, those cases continue to offer both useful guidance and precedential support for future ATS claims. Moreover, the lower courts applied the standard with the same stringent scrutiny imposed by the Supreme Court. Before Sosa, the lower courts repeatedly dismissed ATS claims that did not satisfy the demanding standard.70 The core violations recognized by the lower courts in prior ATS decisions clearly meet the Sosa test. Modern human rights violations in general are much more clearly defined than piracy in Smith, the standard of clarity established by the Court in Sosa. Torture, for example, is defined by an international agreement ratified by 138 nations; genocide is defined and prohibited in a convention ratified by 136 nations.71 War crimes, crimes against humanity, forced labor, and slavery have all been the subject of international development and definition involving most of the countries of the world. ATS claims based upon these and the other core violations are likely to trigger little controversy post-Sosa. e.

An Evolving Definition of the Law of Nations

The Sosa decision confirmed that the ATS reference to torts in violation of the law of nations should be interpreted according to modern definitions of international law, not limited to international law at the time the statute was drafted. “Alvarez’s detention claim must be gauged against the current state of international law.”72 Eighteenth-century violations are relevant only as a “paradigm” to which modern norms can be compared: modern claims trigger before being transferred to U.S. custody in the United States. Alvarez did not appeal the dismissal of these claims. Sosa v. Alvarez-Machain, 542 U.S. 692, 698-99 (2004). 69 Id. at 748 (Scalia, J., concurring in part, concurring in the judgment and dissenting in part). 70 See discussions in Chapter 1 and Chapter 7. 71 See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/tre aty14.asp (ratifications of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment); http://untreaty.un.org/ENGLISH/bible/english internetbible/partI/chapterIV/treaty1.asp (ratifications of Convention on the Prevention and Punishment of the Crime of Genocide). 72 Sosa v. Alvarez-Machain, 542 U.S. 692, 733 (2004).

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ATS jurisdiction if they reflect the same level of international consensus and clear definition as the violations familiar to those who enacted the ATS in 1789. Prior to Sosa, almost all commentators and judges had reached the same conclusion. The Fila´rtiga court held, “[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.”73 The TVPA House Report notes that the ATS permits suits based on “norms that already exist or may ripen in the future into rules of customary international law.”74 International law scholars agreed that this law is not static: “There can be little doubt as to the correctness of the [Fila´rtiga] court’s view. Courts of the United States have long been aware of the evolving character of international law.”75 The fact that the ATS incorporates an evolving definition of international law creates the potential for development over time. The Supreme Court’s cautious approach dictates that only norms that reach a high degree of acceptance and definition will trigger ATS jurisdiction. Nevertheless, there is no fixed list of international torts that fall within the reach of the statute. Litigators 73

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (citing The Paquete Habana, 175 U.S. 677, 694 (1900), and Ware v. Hylton, 3 U.S. (3 Dall.) 198 (1796)). 74 H.R. REP. NO. 102-367, at 4 (1991). The House Report is reprinted in the Appendix. 75 Blum & Steinhardt, supra note 18, at 59. Blum and Steinhardt use slavery as an example: “The slave trade . . . which was once protected by the law of nations, eventually came to be outlawed by it.” Id. They quote Justice Story’s effort to declare the slave trade illegal under international law: It does not follow, . . . that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations. La Jeune Eugenie, 26 F. Cas. 832 (D. Mass. 1821). Justice Story’s opinion was overruled by the Supreme Court on the basis that international law had not yet reached a consensus on the illegality of the slave trade. The Antelope, 23 U.S. (10 Wheat.) 66, 101-02 (1825); Blum & Steinhardt, supra note 18, at 61 n.41. Only one judge, Judge Bork, in a concurring opinion in Tel-Oren, argued that ATS jurisdiction should be limited to international torts recognized at the time the statute was enacted; this position was rejected by most scholars as well as by the Supreme Court in Sosa. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 812-16 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985); William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 499 (1986) (historical background of Judiciary Act and Act itself inconsistent with Judge Bork’s narrow construction).

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should be aware both that new norms may emerge and that norms rejected in the past may satisfy the demanding Sosa test in the future. 3.

Applying the Standard Before and After Sosa

Courts determine whether a violation triggers ATS jurisdiction by looking at a range of international and domestic sources, as well as the views of international law scholars. The process of determining the content of international law is discussed at length in the next section. In addition, Chapter 7 includes detailed analysis of human rights violations raised in ATS claims and the evidence considered by the courts. This section offers an overview of the process of proving that a particular international violation triggers ATS jurisdiction. Courts before Sosa looked first to see whether the norm at issue was “universal,” a requirement similar to—but perhaps even more stringent than—the Sosa Court’s requirement of widespread acceptance by the civilized world. In practice, both require a general international consensus, and both standards leave aside aberrant dissenters.76 Applying an early version of this test, the Fila´rtiga court relied on a wide range of international documents to conclude, “[W]e have little difficulty discerning [the] universal renunciation [of torture] in the modern usage and practice of nations.”77 The court noted the prohibition is recognized by domestic law around the world as well: “We have been directed to no assertion by any contemporary state of a right to torture its own or another nation’s citizen.”78 The U.S. executive branch concurred with this assessment, informing the court that “it has been the Department of State’s general experience that no government has asserted a right to torture its own 76

As Forti II states, “To meet this burden, plaintiffs need not establish unanimity among nations. Rather, they must show a general recognition among states that a specific practice is prohibited.” Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D. Cal. 1988). The Supreme Court in Sosa v. Alvarez-Machain also noted that absolute compliance with international norms is not required in “the present, imperfect world,” 542 U.S. 692, 738 (2004): It is not that violations of a rule logically foreclose the existence of that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F.2d 876, 884, n.15 (C.A.2 1980) (“The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law.”). Sosa v. Alvarez-Machain, 542 U.S. 692, 738 n.29 (2004). 77 Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 883 (2d Cir. 1980). 78 Id. at 884.

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nationals.”79 Similarly, the Second Circuit in Kadic v. Karadzic80 concluded that a claim of genocide triggered ATS jurisdiction based upon its widespread condemnation. The court traced the prohibition of genocide from an early U.N. General Assembly declaration in 1946, through the Charter of the Nuremberg War Crimes Tribunal, to the Convention on the Prevention and Punishment of Genocide, which had been ratified by more than 120 nations.81 A similar analysis led the court to hold that allegations of war crimes trigger ATS jurisdiction.82 In addition to international and domestic legal sources, courts rely upon the opinions of scholars of international law.83 The Forti analysis provided a model upon which later cases have relied. Judge Jensen initially rejected a disappearance claim, finding that plaintiffs had failed to show that there was “the requisite degree of international con[s]ensus” necessary to trigger ATS jurisdiction.84 He also found definitional problems, based on a lack of consensus as to what conduct fell within the proposed norm.85 Plaintiffs petitioned for reconsideration, submitting affidavits from eight “renowned international law scholars.”86 Based on those affidavits, the court held that plaintiffs had met their burden of showing both that disappearance was a “universally recognized wrong under the 79

Id. 70 F.3d 232 (2d Cir. 1995). 81 Id. at 241. 82 Id. at 242-43. 83 The Supreme Court in Sosa recognized the role played by experts in the determination of the content of international law, quoting The Paquete Habana’s classic statement of the sources of international law: [W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). 84 Forti v. Suarez-Mason, 672 F. Supp. 1531, 1543-44 (N.D. Cal. 1987) (Forti I). 85 Id. at 1544. 86 Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D. Cal. 1988) (on reconsideration) (Forti II). 80

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law of nations”87 and that there was a “universally recognized legal definition of what constitutes the tort of ‘causing disappearance.’ ”88 The affidavits themselves relied upon international resolutions and declarations, statements of the U.S. Congress, the Restatement (Third) of the Foreign Relations Law of the United States (Restatement) (1987), and law review commentary.89 Forti I also rejected a claim of cruel, inhuman, or degrading treatment; on reconsideration, the court again dismissed this claim, finding that it was not sufficiently defined to satisfy the ATS requirements.90 A later district court opinion in Xuncax v. Gramajo91 disagreed, finding that it was not necessary to show a consensus on every aspect of the definition of the violation. It is not necessary that every aspect of what might comprise a standard such as “cruel, inhuman or degrading treatment” be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law, any more than it is necessary to define all acts that may constitute “torture” or “arbitrary detention” in order to recognize certain conduct as actionable misconduct under that rubric.92 Accordingly, the court found plaintiffs’ claims actionable to the extent that the conduct they alleged “plainly falls within the rubric of ‘cruel, inhuman or degrading treatment.’”93 Since the 1980 Fila´rtiga decision, the courts have used this careful approach to recognize a small core of actionable human rights violations, including genocide, torture, summary execution, disappearance, war crimes, crimes against humanity, slavery, arbitrary detention, and cruel, inhuman, or degrading treatment. Each is discussed in detail in Chapter 7. Many more claims have been dismissed because plaintiffs asserted violations that did not meet this standard. For example, claims for fraud, negligence, censorship, commercial torts, conversion, or defamation have all been dismissed.94 Several courts have 87

Id. at 710. Id. at 710-11. 89 Id. at 709-11. 90 Forti v. Suarez-Mason, 672 F. Supp. 1531, 1543 (N.D. Cal. 1987); Forti v. SuarezMason, 694 F. Supp. 707, 711-12 (N.D. Cal. 1988). See Chapter 7. 91 886 F. Supp. 162 (D. Mass. 1995). 92 Id. at 187. 93 Id. 94 See discussion of rejected claims in Chapter 7, Section F. 88

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also rejected claims alleging environmental harms.95 Despite considerable international discussion of the human rights violated by environmental destruction, the courts have held consistently that these claims do not rise to the level required by the ATS. Finally, the courts have also dismissed claims involving widely accepted, clearly defined norms when the pleadings fail to support the essential elements of the claim. For example, a district court dismissed a claim of genocide where the plaintiffs failed to allege that the persecution was due to national, ethnic, racial, or religious grounds.96 This standard remains essentially the same post-Sosa: post-Sosa courts have read the Sosa standard to be the functional equivalent of that applied by the lower courts pre-Sosa. In Sarei v. Rio Tinto, for example, the Ninth Circuit concluded that the ATS approach developed by earlier Ninth Circuit cases remained sound under Sosa.97 Sarei cited Justice Scalia’s observation that the majority opinion in Sosa “explicitly endorses” that standard.98 In Aldana v. Del Monte Fresh Produce, N.A., Inc., the Eleventh Circuit cited the “vigilant doorkeeping” required by the Supreme Court and upheld the district court’s dismissal of claims for arbitrary detention and cruel, inhuman, and degrading treatment (CIDT), while reversing dismissal of a torture claim based on mental torture.99 The approach to each of the claims is similar to that used by earlier, pre-Sosa courts, which had split on the viability of CIDT claims, and had 95

See, e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 159-72 (2d Cir. 2003) (rejecting environmental claim); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 16667 (5th Cir. 1999) (same). See Chapter 7. 96 Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1261 (N.D. Ala. 2003). See also Beanal v. Freeport-McMoran, Inc., 197 F.3d at 168 (5th Cir. 1999) (genocide claim unavailable when pleadings “are devoid of discernable means to define or identify conduct that constitutes a violation of international law”). 97 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at * 2 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 98 Id. (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 748 (2004) (Scalia, J., concurring in part, concurring in the judgment and dissenting in part)). 99 416 F.3d 1242, 1246-47, 1250-53 (11th Cir. 2005); see also Cabello v. Ferna ´ ndezLarios, 402 F.3d 1148 (11th Cir. 2005) (upholding jury verdict for extrajudicial killing, torture, crimes against humanity, cruel, inhuman, and degrading treatment without discussing any possible change post-Sosa).

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recognized the weakness of claims based on short detentions in the absence of torture or other physical assaults.100 Lower courts reached the same conclusion about the similarity between the pre- and post-Sosa standards for determining which claims are actionable under the ATS. In Doe v. Saravia, for example, a case alleging liability for the assassination of Archbishop Oscar Romero in El Salvador, the district court relied on pre-Sosa decisions to determine that the plaintiff’s claims of extrajudicial execution and crimes against humanity triggered ATS jurisdiction.101 The court interpreted the Sosa language as the equivalent of the pre-Sosa test, which required an international norm that is “specific, universal and definable.”102 In Arndt v. UBS AG, the court applied pre-Sosa case law to reject ATS jurisdiction over “garden variety” common law commercial claims for fraud, unjust enrichment, conversion, and misrepresentation.103 The court noted that the Second Circuit’s prior precedents defining a tort actionable under the ATS are “consistent with the Supreme Court’s holding in Sosa.”104 In Doe v. Lui Qi, a case involving torture, arbitrary detention, and other abuses of Falun Gong practitioners in China, a judge magistrate had issued a recommendation in 2003, before the Supreme Court granted review of the Sosa case.105 After the Supreme Court decision, the judge asked the magistrate to reconsider the case; the magistrate then issued a recommendation, adopted by the judge, which reiterated his prior conclusions as to the appropriate definitions of cognizable international norms. In particular, when determining whether plaintiffs’ allegations triggered ATS liability, the opinion held that the current standard is the same as that defined by pre-Sosa case law: “The question of whether a claim under the ATCA lies thus turns on whether the specific facts 100

See discussions of CIDT and arbitrary detention in Chapter 7. 348 F. Supp. 2d 1112 (E.D. Cal. 2004). See also Mohammad v. Bin Tarraf, 114 Fed. Appx. 417 (2d Cir. 2004) (torture claims survive Sosa); Jama v. U.S.I.N.S., 343 F. Supp. 2d 338, 361 (D.N.J. 2004) (dismissing ATS claim for isolated acts of guards but accepting claim against private company operating detention center “for inhumane treatment of huge number of persons accused of no crime and held in confinement”). 102 Doe v. Saravia, 348 F. Supp. 2d 1112, 1153-57 (E.D. Cal. 2004). 103 342 F. Supp. 2d 132, 138-41 (E.D.N.Y. 2004). 104 Id. at 138. 105 349 F. Supp. 2d 1258 (N.D. Cal. 2004). 101

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. . . violate[] international norms that are ‘specific, universal and obligatory.’”106 C. FINDING AND PROVING INTERNATIONAL LAW The ATS provides jurisdiction over violations of widely accepted, clearly defined international norms. Plaintiffs bear the burden of proving that a claim meets this standard. Determining the content of international law is a matter of law for the court, which may consider “any relevant material or source, including expert testimony.”107 Given that international law is often based on multiple, diverse sources, proving that a given norm meets the ATS standard often requires careful presentation of a range of material. Where the content of a written international agreement is at issue, interpretation of the document is akin to statutory interpretation. The courts examine the text of the agreement along with any records of the negotiation history (travaux preparatoires), interpretation by international and domestic courts, the views of the United States and other governments, and scholarly opinions. International agreements are now easily available online. Information about the history of the agreement, judicial applications, and diplomatic and scholarly views is likely to be more scattered. The best source is often a law review article or other publication, or a scholar capable of gathering the relevant information. In addition to written agreements, international norms may be based on customary international law, defined by the Restatement as rules resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”108 The existence and content of customary international law must be proven by reference to multiple sources, summarized by the Supreme Court as follows: What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by 106 Id. at 1278. See also Weiss v. American Jewish Comm., 335 F. Supp. 2d 469, 476 (S.D.N.Y. 2004), in which the court applied pre-Sosa Second Circuit standards to determine that the plaintiff’s claims did not trigger ATS jurisdiction. 107 RESTATEMENT (THIRD) § 113(2). 108 RESTATEMENT (THIRD) § 102(2). “Of course, States need not be universally successful in implementing the principle in order for a rule of customary international law to arise. If that were the case, there would be no need for customary international law. But the principle must be more than merely professed or aspirational.” Flores v. Southern Peru Copper Corp., 343 F.3d 140, 154 (2d Cir. 2003).

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the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.109 The Restatement summarizes the sources of international law in similar categories: In determining whether a rule has become international law, substantial weight is accorded to (a) judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c) the writings of scholars; (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.110 This is also in accord with the provisions governing sources of international law set forth in the Statute of the International Court of Justice.111 In practice, the courts in ATS cases look first for any relevant international treaties. Although legally binding only on the states that have ratified the treaty, an international agreement that has been widely ratified may reflect a principle of customary international law. “The evidentiary weight to be afforded to a given treaty varies greatly depending on (i) how many, and which, States have ratified the treaty, and (ii) the degree to which those States actually implement and abide by the principles set forth in the treaty.”112 For example, courts addressing a claim of genocide rely heavily on the fact that the Convention Against Genocide has been ratified by most nations of the world.113 Courts also consult a variety of non-binding indications of the status of an international norm. The Supreme Court in Sosa observed that non-binding sources do not by themselves establish norms actionable under the ATS: Noting that neither the Universal Declaration of Human Rights (UDHR) nor the 109

United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820). The Paquete Habana reaffirmed that international law can be determined by referring to: [T]he customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. 175 U.S. 677, 700 (1900) (citing Hilton v. Guyot, 159 U.S. 113 (1895)). 110 RESTATEMENT (THIRD) § 103(2). 111 Art. 38(1)(d). See RESTATEMENT (THIRD) § 102 n.1. 112 Flores v. Southern Peru Copper Corp., 343 F.3d 140, 162-63 (2d Cir. 2003). 113 See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995).

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International Covenant on Civil and Political Rights (ICCPR) creates obligations directly enforceable in U.S. courts, the Court concluded, “Alvarez cannot say that the Declaration and Covenant themselves establish the relevant and applicable rule of international law.”114 However, many decisions consider international declarations, particularly declarations of the U.N. General Assembly, not as binding by themselves but because they contribute to an understanding of the custom and practice of nations. The Fila´rtiga court, for example, considered both the UDHR and the Declaration Against Torture as evidence of the universal repudiation of torture.115 Similarly, decisions of international tribunals, including the International Court of Justice, while not legally binding on non-parties, are often cited as evidence of the customary status of an international law norm.116 The Supreme Court’s discussion of the ICCPR and the UDHR did not indicate disapproval of all references to international declarations and non-self-executing treaties.117 After noting that neither document on its own establishes rules of international law applicable in ATS cases, the Court considered whether the prohibition of arbitrary arrest had attained the status of binding customary international law and paraphrased Alvarez’s claim as the broad assertion that his arrest violated international law “because no applicable law authorized it.”118 The opinion noted that “whether or not this is an accurate 114

Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (emphasis added).

115

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980). Fila´rtiga was decided before the adoption of the binding Convention Against Torture and Cruel, Inhuman, or Degrading Treatment. See the discussion of Fila´rtiga’s use of the Universal Declaration in Flores v. Southern Peru Copper Corp., 343 F.3d 140, 167 (2d Cir. 2003) (Fila´rtiga cited the Universal Declaration for the proposition that torture is universally condemned, reasoning that “a [United Nations] declaration may by custom become recognized” as a rule of customary international law. Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 883 (2d Cir. 1980) (emphasis added) (internal quotation marks and citation omitted)). 116

“The decision[s] of the Court ha[ve] no binding force except between the parties and in respect of that particular case.” Statute of the International Court of Justice, art. 59. 117

See the discussion of the ICCPR and other international law sources in Sosa v. Alvarez-Machain, 542 U.S. 692, 734-37 (2004). 118 Alvarez, according to the Court, asserted “a general prohibition of ‘arbitrary’ detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances.” Sosa v. Alvarez-Machain, 542 U.S. 692, 695 (2004). The Court observes that the implications of this prohibition “would be breathtaking,” as it “would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place.” Id. at 736.

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reading of the Covenant, Alvarez cites little authority that a rule so broad has the status of a binding customary norm today.”119 The Court reviewed the several possible sources for such a rule that were cited by Alvarez, but it found each of them inadequate.120 The Court did not consider the ICCPR in this discussion of customary international law. Some defendants, therefore, claim that the Court rejects the Covenant as a source of customary international law norms actionable under the ATS. Reading the Sosa language as ruling out such reliance, a 2005 ATS decision rejected prior precedents precisely because they relied on the ICCPR.121 This case went too far: Sosa certainly did not rule out reference to the ICCPR, other non-self-executing treaties, or non-binding resolutions to determine the content of customary international law as part of a broader review of international law sources. Nevertheless, the Court’s discussion of arbitrary arrest and detention did make clear that if the ICCPR norm is phrased in very general terms or is so broad as to encompass non-egregious violations, it will not by itself support an ATS claim, which must be based on a widely accepted and clearly defined norm.122 Of course, many ICCPR norms are not so general or overinclusive: The prohibition on torture, for example, is clearly a norm of customary international law, and its inclusion in the ICCPR is relevant evidence of that status. Similarly, many of the norms included in the UDHR have attained the status of customary international law, including, again, the prohibition of torture. The Supreme Court in Sosa cited with approval the decisions in Fila´rtiga and Marcos, both of which looked to non-binding sources as part of their determination that the claims violated norms actionable under the ATS.123 Many domestic law sources also help demonstrate both the universal nature of a norm and state practice. In Fila´rtiga, the court noted that 55 domestic constitutions prohibited torture124 and cited the State Department’s conclusion 119

Id. at 736. Some were rejected because they were so general as to provide no meaningful guidance, others because they concerned longer, harsher detentions. Id. at 736-38. 121 Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247 (11th Cir. 2005). 122 Applying this analysis to Alvarez, an unlawful arrest and a 24-hour illegal detention, followed by delivery to lawful authorities, did not trigger ATS jurisdiction even if it violated the ICCPR. Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004). 123 Id. at 732. 124 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 884 n.12 (2d Cir. 1980). 120

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that no state claimed the right to torture its own citizens.125 Both were viewed as relevant evidence that states consider themselves bound by the prohibition on torture. Decisions of domestic tribunals can serve the same evidentiary purpose. Secondary sources contribute to the court’s search for the content of international law. Many cases cite the Restatement’s list of customary international law violations. Section 702 includes most of those recognized to date as falling within the jurisdiction of the ATS: A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.126 The Restatement, however, clearly indicates that its list of customary international law violations is not inclusive: “The list is not necessarily complete, and is not closed: human rights not listed in this section may have achieved the status of customary law, and some rights might achieve that status in the future.”127 Moreover, Sosa makes clear that the Restatement’s listing of a violation may be insufficient to provide the clear definition required to trigger ATS jurisdiction.128 125

As explained by the U.S. executive branch: In exchanges between United States embassies and all foreign states with which the United States maintains relations, it has been the Department of State’s general experience that no government has asserted a right to torture its own nationals. Where reports of torture elicit some credence, a state usually responds by denial or, less frequently, by asserting that the conduct was unauthorized or constituted rough treatment short of torture. Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 884 (citing Memorandum of the United States as Amicus Curiae, at 16 n.34). 126

RESTATEMENT (THIRD) § 702.

127

Id., § 702 cmt. a.

128

The Court discussed the Restatement’s analysis of arbitrary detention, noting that the Restatement requires that the detention be “prolonged” and reflect a “state policy,” but also referring to a definitional uncertainty: Even the Restatement’s limits are only the beginning of the enquiry, because although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone’s three common law offenses. Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004).

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ATS cases generally consider the views of international law scholars, in keeping with the traditional view that experts serve as a secondary source for the content of international law.129 However, such views are relevant only to the extent that they are soundly rooted in binding international law obligations and descriptive of state practice and custom. As the Supreme Court stated in The Paquete Habana: [W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.130 If law professors wander into “speculations,” the courts will disregard their views.131 But when expert affidavits have offered sound discussions of existing 129 See, e.g., references to international law affidavits in Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1286 (11th Cir. 2006) (citing Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004)); Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257, 272 (E.D.N.Y. 2007); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 644 (S.D.N.Y. 2006); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1179 (C.D. Cal. 2005); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 18 (E.D.N.Y. 2005); Xuncax v. Gramajo, 886 F. Supp. 162, 184-89 (D. Mass. 1995); Forti v. Suarez-Mason, 694 F. Supp. 707, 709-12 (N.D. Cal. 1988); Wiwa v. Royal Dutch Petroleum Company, Civ. No. 96-8386, 2002 WL 319887, at *5, *6, *9 (S.D.N.Y. Feb. 22, 2002); and references to scholars’ published works in Sarei v. Rio Tinto, PLC, Nos. 02-56256, 02-56390, 2007 WL 1079901, at * 29, *31 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. But see Flores v. Southern Peru Copper Corp., 414 F.3d 233, 256 (2d Cir. 2003) (urging caution when expert affidavits express “the policy-driven . . . work of advocates” or “personal viewpoints,” rather than compilations reflecting the content of customary international law). 130 175 U.S. 677, 700 (1900). 131 The Second Circuit, in 2003, offered a useful caution about the reliance on the views of law professors: The Supreme Court and the drafters of Article 38 [of the Statute of the International Court of Justice] recognized the value of the role traditionally played by scholars in identifying and recording the practices of States and thereby revealing the development of customary international law rules. . . . But neither Paquete Habana nor Article 38 recognizes as a source of customary international law the policy-driven or theoretical work of advocates that comprises a substantial amount of contemporary international law scholarship. Nor do these authorities permit us to consider personal viewpoints expressed in the affidavits of international law scholars. In sum, although scholars may

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international law norms, rather than supplemental briefs for either plaintiffs or defendants, the courts have consistently relied upon them as “trustworthy evidence” of the content of international law. Finally, perhaps the most informative aspect of the Supreme Court’s review of the sources of international law in Sosa is the fact that the Court does not even mention the views of the executive branch about the content of the international norm at issue, the prohibition of arbitrary detention. The Bush administration brief argued that the judiciary should defer to the executive branch’s interpretation of international law.132 Not only did the Court fail to agree with that position, it made no reference at all to the executive branch position. The opinion thus reaffirms that determination of the content of international law is a matter of law to be decided by the court. The role of the executive branch and the influence of executive interventions are discussed at greater length in Chapter 16. provide accurate descriptions of the actual customs and practices and legal obligations of States, only the courts may determine whether these customs and practices give rise to a rule of customary international law. Flores v. Southern Peru Copper Corp., 343 F.3d 140, 171 (2d Cir. 2003). 132 Brief for the United States as Respondent Supporting Petitioner, Sosa v. AlvarezMachain, 542 U.S. 692 (2004) (No. 03-339), 2004 WL 577654, available at www.ccrny.org/humanrightsbook.

Part II OTHER BASES FOR SUIT

Although many human rights cases in U.S. courts rely on the Alien Tort Statute (ATS),1 claims may also be based on several alternative statutes and common law doctrines. The three chapters in this part deal with those additional bases for human rights claims. Chapter 4 reviews the Torture Victim Protection Act (TVPA)2 and its relationship to the ATS. Chapter 5 analyzes the Foreign Sovereign Immunities Act (FSIA),3 including both claims against foreign states and the controversy surrounding its application to foreign officials. Chapter 6 addresses various other potential bases for human rights claims. Section A of the chapter considers whether the federal question jurisdiction provision of 28 U.S.C. Section 1331 provides a basis for human rights claims. Section B examines the Anti-Terrorism Act,4 which provides both jurisdiction over certain claims and a cause of action. Section C reviews the Racketeer Influenced and Corrupt Organizations Act (RICO),5 which offers a basis for certain claims involving property losses. State and foreign law claims that parallel human rights norms are considered in Section D. 1 2 3 4 5

28 28 28 18 18

U.S.C. U.S.C. U.S.C. U.S.C. U.S.C.

§ 1350. § 1350 (note). §§ 1330, 1602-1611. §§ 2331-2339C. § 1961 et seq.

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CHAPTER 4 THE TORTURE VICTIM PROTECTION ACT (TVPA)

A. INTRODUCTION The Torture Victim Protection Act (TVPA)1 was enacted in 1992 and signed into law by President George H.W. Bush.2 The TVPA sets forth an explicit federal cause of action for torture and extrajudicial killings committed under color of foreign law, anywhere in the world, on behalf of any individual, including U.S. citizens.3 The legislative history of the statute explains that it was designed to provide a modern cause of action for these two human rights violations and to extend the right to sue to U.S. citizens as well as aliens. The legislative history also states clearly that the TVPA was not intended to replace the Alien Tort Statute (ATS).4 The basic elements of a TVPA claim are clearly stated in the statute, which defines liability as follows: An individual who, under actual or apparent authority, or under color of law, of any foreign nation—(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.5 1

28 U.S.C. § 1350 (note). Pub. L. No. 102-256, 106 Stat. 73 (1992). The statute was codified as a “note” to the Alien Tort Statute, 28 U.S.C. § 1350. 3 The TVPA is reprinted in the Appendix, along with the full text of the House and Senate reports (H.R. REP. NO. 102-367 (1991), reprinted in 1992 U.S.C.C.A.N. 84; S. REP. NO. 102-249 (1991)) and the statement issued by President Bush when he signed the statute (Statement on Signing the Torture Victim Protection Act of 1991, 28 WEEKLY COMP. PRES. DOC. 465 (Mar. 12, 1992)). 4 28 U.S.C. § 1350. 5 TVPA, § 2(a). 2

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The statute thus permits claims by an “individual” for torture or extrajudicial execution, if committed “under actual or apparent authority” or “under color of law” of any foreign nation. The TVPA includes a ten-year statute of limitations.6 As of late 2006, approximately 45 reported decisions included TVPA claims; about a dozen resulted in final judgments awarding damages, with approximately another dozen pending in trial courts or on appeal. Claims have been dismissed for varied reasons, including immunity from suit; failure to show that the defendant was acting under color of law of a foreign nation; the statute of limitations; or failure to state a claim that meets the TVPA definitions.7 TVPA cases are often filed in conjunction with ATS or other claims. Cabello v. Ferna´ndez-Larios is typical of this pattern.8 Winston Cabello, a Chilean economist, was executed by Chilean military officers on October 17, 1973. In 1999, his survivors filed an action against an officer who participated in his execution. Plaintiffs included his mother and two sisters, all U.S. citizens; his brother, a Chilean citizen; and his estate, also considered a citizen of Chile. The complaint therefore included: (1) TVPA claims for torture and extrajudicial killing on behalf of all of the plaintiffs; and (2) ATS claims for crimes against humanity and cruel, inhuman, or degrading punishment on behalf of Cabello’s estate and his brother, the non-citizen plaintiffs. At trial, the jury awarded the plaintiffs $4 million in damages. The Eleventh Circuit upheld the verdict, finding that the ten-year statute of limitations had been tolled9 and that both the ATS and the TVPA extended liability to those who conspired with or assisted violations, as well as the direct perpetrators.10 6

TVPA, § 2(c). See, e.g., Schneider v. Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004) (dismissing TVPA claims because they “appear to be barred by Dr. Kissinger’s qualified immunity from suit” and because defendant was not acting “ ‘under actual or apparent authority, or color of law, of any foreign nation’ ”) (quoting TVPA, § 2(a)); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 112 (E.D.N.Y. 2005) (dismissing TVPA claims because the use of herbicides “does not fit . . . within the definition of either torture or extrajudicial killing” and also noting that the claims were barred by the TVPA’s ten-year statute of limitations). 8 402 F.3d 1148 (11th Cir. 2005). For the facts and history detailed in this paragraph, see the Eleventh Circuit opinion, id. at 1151, and the Web site of the Center for Justice and Accountability, Frequently Asked Questions, Cabello v. Fernandez-Larios, available at http://www.cja.org/cases/Cabello Docs/CabelloFAQs.shtml. 9 Cabello v. Ferna ´ ndez-Larios, 402 F.3d 1148, 1156 (11th Cir. 2005). 10 Id. at 1157-58. 7

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As a modern statute, the TVPA provides explicit statutory direction on many of the issues left open by the ATS. As discussed in Section C, courts often turn to the TVPA as a model to resolve issues that arise under the ATS. This chapter discusses several issues specific to TVPA claims, while issues that overlap with those raised by the ATS or other jurisdictional statutes are discussed in later chapters: •

•

•

Sections 3(a) and 3(b) of the TVPA provide definitions of torture and extrajudicial execution; these definitions are discussed in Chapter 7, Sections D.1 and D.2. Section 2(b) of the TVPA states that a claimant must “exhaust[] adequate and available remedies in the place in which the conduct giving rise to the claim occurred,” a requirement analyzed in Chapter 15, Section C. Section 2(c) of the TVPA imposes a statute of limitations of ten years; the application of this rule and equitable tolling are discussed in Chapter 15, Section A.11

B. HISTORY The TVPA was first introduced in Congress in 1986. It was enacted in 1992, passing by overwhelming votes in both the Senate and the House. Interpretation of the statute has been guided by the detailed legislative history, particularly the House and Senate legislative reports.12 These reports highlight the statute’s role in the battle to protect human rights around the world, stressing the importance of guaranteeing victims of torture and extrajudicial killings access to U.S. courts: Judicial protections against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent. A state that practices torture and summary execution is not one that 11

See also Chapter 14 for discussion of immunity from suit; Chapter 10 for discussion of the color of law requirement; and Chapter 11, Section D, for issues arising from TVPA suits against U.S. government officials. 12 Both the Senate and the House issued reports describing the purpose of the TVPA. H.R. REP. NO. 102-367 (1991); S. REP. NO. 102-249 (1991). The Senate’s Report is longer and more detailed and somewhat more helpful to plaintiffs. Both are reprinted in the Statutory Appendix.

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adheres to the rule of law. . . . The Torture Victim Protection Act . . . would respond to this situation.13 The Senate Report describes the statute as “carry[ing] out the intent of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (Convention Against Torture),14 which obligates state parties to ensure that torturers within their jurisdiction are held legally accountable.15 The legislative history also voices strong support for both the ATS and the Fila´rtiga decision,16 noting that “[s]ection 1350 has . . . important uses and should not be replaced”17 and that “[t]he Fila´rtiga case met with general approval.”18 The TVPA is described as having multiple purposes: expanding the ATS to U.S. citizens as well as aliens19 ; providing “an unambiguous and modern basis for a cause of action” for torture and summary execution20 ; and responding to the doubts about Fila´rtiga raised by Judge Bork in Tel-Oren v. Libyan Arab Republic.21 13

H.R. REP. NO. 102-367, at 3 (1991). Describing these human rights abuses as “dehumanizing” means of terrorizing and oppressing “entire populations,” the Senate Report states that the TVPA will “mak[e] sure that torturers and death squads will no longer have a safe haven in the United States.” S. REP. NO. 102-249, at 3 (1991). 14 S. REP. NO. 102-249, at 3 (1991). See also 18 U.S.C. § 2340 et seq. (1988) (implementing Convention Against Torture by creating a federal crime of torture). 15 The Convention Against Torture obligates each state to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.” Art. 14(1). The U.S. Senate, however, attached language to its approval of the Convention stating the U.S. “understanding” that the Convention “requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.” 136 CONG. REC. S17486, 17492 (1990). 16 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 17 H.R. REP. NO. 102-367, at 3 (1991). 18 Id. at 4. 19 Id. 20 Id. at 3. 21 Id. at 4 (referring to Judge Bork’s concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798-823 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985)). See Wiwa v. Royal Dutch Petroleum Co., 266 F.2d 88, 104 (2d Cir. 2000) (“In passing the Torture Victim Protection Act, 28 U.S.C. § 1350, in 1991, Congress expressly ratified our holding in Fila´rtiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further.”).

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The TVPA constitutes a modern expression of congressional support for the exercise of extraterritorial jurisdiction over certain egregious human rights violations. The statute strengthens human rights litigation in several distinct ways: the TVPA creates an independent cause of action for certain claims; allows U.S. citizens to raise those claims; provides support for the ATS and for Fila´rtiga and its progeny; and demonstrates that providing redress in U.S. courts for human rights violations is a modern concern, not a relic of the 18th century. The administration of President George H.W. Bush opposed passage of the TVPA, arguing that it did not implement the Convention Against Torture; improperly asserted jurisdiction over actions having no connection to the United States; risked provoking retaliatory lawsuits against U.S. officials; and involved individual litigants in foreign policy decisions.22 In reply, supporters of the bill pointed out that it would complement the Convention Against Torture’s requirement that victims of torture be afforded redress and compensation and that the bill’s jurisdictional scope was consistent with the U.S. government’s assertion of jurisdiction over terrorist crimes committed anywhere in the world.23 As to the risk of interference with foreign policy, a cogent response is found in the amicus brief submitted in the Fila´rtiga case by the administration of President Jimmy Carter, which stated that the assertion of federal court jurisdiction over a case alleging a clearly defined, universally recognized human rights violation would not interfere with foreign policy.24 President Bush signed the law in 1992, despite his administration’s stated opposition. In his signing statement, he reiterated the view that the TVPA did not implement the Convention Against Torture and voiced concerns about the potential impact of the statute,25 but he expressed support for the legislation’s objectives: These potential dangers, however, do not concern the fundamental goals that this legislation seeks to advance. In this new era, in which 22

See Torture Victim Protection Act of 1989: Hearing on S. 1629 and H.R. 1662 Before the Subcomm. on Immigration and Refugee Affairs of the Sen. Judiciary Comm., 101st Cong. 11-16 (statement of John O. McGinnis, Dept. of Justice) and 22-29 (statement of David P. Stewart, Department of State) (1990). 23 Id. at 31-34 (remarks of Sen. Arlen Specter). 24 Brief for the United States as Amicus Curiae, Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980), 1980 WL 340146, at * 22-23, available at www.ccr.ny-org/humanrightsbook. See discussion of the political question doctrine in Chapter 13, Section A, and discussion of the changing views of the executive branch in Chapter 16, Section D. 25 Statement on Signing the Torture Victim Protection Act of 1991, supra note 3.

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countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that human rights are respected everywhere.26 Despite his administration’s opposition to the statute, the words of President Bush support the overarching purpose of the TVPA, and, by extension, the ATS—to strengthen the enforcement of human rights norms around the world. At the time the statute was enacted, two dissenting senators expressed doubts about its constitutional basis.27 No court has endorsed their concerns. Congress has the authority to create a cause of action for violations of international law under any one of several constitutional powers: the congressional power to control foreign affairs, to implement international law, or to “define and punish . . . offenses against the law of nations.”28 The federal courts have jurisdiction over TVPA claims under the general federal question statute.29 Since TVPA claims also constitute violations of the law of nations, the ATS provides an alternative source of jurisdiction over TVPA claims filed by aliens. C. RELATIONSHIP TO THE ALIEN TORT STATUTE (ATS) 1.

The TVPA Endorses the Fila´rtiga Line of Cases

Both the House and Senate reports accompanying passage of the TVPA expressed strong support for the ATS and the Fila´rtiga30 line of cases. The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing 26

Id. at 466. The dissenting senators argued that the TVPA “possibly exceeds Congress’ constitutional authority.” S. REP. NO. 102-249, at 13 (1991) (Minority Views of Messrs. Simpson and Grassley). In short, we simply do not agree with the contention in the majority views that Congress “clearly has authority to create a private right of action for torture and extrajudicial killings committed abroad.” . . . We must concur with the Department of Justice’s reservations about the constitutionality of this statute. Id. at 14. 28 U.S. CONST. art. I, § 8, cl. 10. For a full discussion of the constitutional foundations for the TVPA, see Beth Stephens, Federalism and Foreign Affairs: Congress’s Power to “Define and Punish . . . Offenses Against the Law of Nations”, 42 WM. & MARY L. REV. 447, 520-25 (2000). 29 28 U.S.C. § 1331 (granting the district courts jurisdiction over civil actions “arising under” the laws of the United States). 30 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 27

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law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed “in violation of the law of nations.” Section 1350 has . . . important uses and should not be replaced.31 The reports discuss the Fila´rtiga holding and then state, “The Fila´rtiga case met with general approval.”32 The Supreme Court in Sosa recognized that passage of the TVPA indicated congressional support for the Court’s interpretation of the ATS as authorizing modern human rights claims: Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga. . . . Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.33 The Eleventh Circuit as well concluded that the TVPA indicates congressional approval of Fila´rtiga and its progeny: “Lastly, we find support for our holding in the recently enacted [TVPA]. In enacting the TVPA, Congress endorsed the Fila´rtiga line of cases.”34 2.

The Dispute About Whether the TVPA Replaces Some ATS Claims

Defendants in several cases have argued that the TVPA limited the scope of the ATS in various ways. Prior to Sosa, the lower courts concluded unanimously that the TVPA did not alter the reach of the ATS. In Kadic v. Karadzic, for example, the Second Circuit rejected the defendant’s argument that the color of law requirement of the TVPA applied to the ATS.35 The court concluded broadly that “[t]he scope of the Alien Tort Act remains undiminished by 31

H.R. REP. NO. 102-367, at 3 (1991) (citation omitted). Id. at 4. 33 Sosa v. Alvarez-Machain, 542 U.S. 692, 730-31 (2004). 34 Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996). See also Wiwa v. Royal Dutch Petroleum Co., 266 F.2d 88, 104 (“In passing the Torture Victim Protection Act, 28 U.S.C. § 1350, in 1991, Congress expressly ratified our holding in Fila´rtiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further.”). 35 70 F.3d 232, 241 (2d Cir. 1995). 32

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enactment of the Torture Victim Act.”36 Kadic relied on the congressional intent reflected in the legislative history,37 in particular the statement that the ATS should remain “intact”: “‘Claims based on torture and summary executions do not exhaust the list of actions that may appropriately be covered [by the Alien Tort Act]. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.’”38 The Supreme Court in Sosa recognized and endorsed this understanding of the TVPA, concluding that “nothing Congress has done is a reason for us to shut the door to the law of nations entirely.”39 Several defendants have argued that claims for torture and summary execution must now be brought pursuant to the TVPA, not the ATS. Prior to Sosa, the courts unanimously rejected that position.40 Since Sosa, almost all courts have agreed; the lone opposing view comes from a Seventh Circuit panel, 36 37

Id. The Kadic court stated: Congress enacted the Torture Victim Act to codify the cause of action recognized by this Circuit in Fila´rtiga, and to further extend that cause of action to plaintiffs who are U.S. citizens. See [House TVPA Report] (explaining that codification of Fila´rtiga was necessary in light of skepticism expressed by Judge Bork’s concurring opinion in Tel-Oren).

Id. 38

Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995) (quoting H.R. REP. NO. 102-367, at 4 (1991)). See also S. REP. NO. 102-249, at 4 (1991) (“[The ATCA] has . . . important uses and should not be replaced”). 39 Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004). 40 See, e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 153 (2d Cir. 2003) (recognizing that “[t]he TVPA reaches conduct that may also be covered by the ATCA”); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 168-69 (5th Cir. 1999) (considering separately claims under the ATS and TVPA that are “essentially predicated on the same claims of individual human rights violations”); Hilao v. Estate of Marcos, 103 F.3d 767, 778-79 (9th Cir. 1996) (noting that the TVPA codifies the cause of action recognized to exist in the ATS). As stated in Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at *4 (S.D.N.Y. Feb. 28, 2002): This Court reads Kadic I to hold that the TVPA did not preempt torture and summary execution claims under the ATCA. . . . In fact, no court that has evaluated ATCA claims since the enactment of the TVPA has held that the TVPA in any way preempts ATCA claims for torture and extrajudicial killings. . . . [T]he TVPA simply provides an additional basis for assertion of claims for torture and extrajudicial killing.

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over a strong dissent.41 Both the Ninth and Eleventh Circuits have specifically rejected the Seventh Circuit decision.42 In Aldana v. Del Monte Fresh Produce, N.A., Inc., for example, the Eleventh Circuit considered the texts of the TVPA and the ATS, precedent, and rules of statutory interpretation, and concluded that claims for torture can be litigated under both statutes.43 Aldana also explicitly rejects the conclusion that Sosa mandates any other result: Nothing in Sosa changes this conclusion; in fact, it confirms it. When describing the TVPA, the Supreme Court said it was an example of Congress providing a “clear mandate” to allow recovery for claims “confined to [a] specific subject matter”[:] torture and extrajudicial killing. But the Court did not say that the authority granted in the Torture Victim Protection Act provided the exclusive authority to hear torture claims.44 Enahoro reached the opposite result by concluding that the TVPA precludes common law claims for torture and extrajudicial execution: We find that the Act does, in fact, occupy the field. If it did not, it would be meaningless. No one would plead a cause of action under the Act and subject himself to its requirements if he could simply plead under international law. While there is no explicit statement to this effect in Sosa, the implications are that the cause of action Congress 41 Compare Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at * 2 n.28 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (holding that claims for torture and summary execution can still be brought pursuant to the ATS); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-51 (11th Cir. 2005) (same); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1156-58 (11th Cir. 2005) (same); Chavez v. Carranza, 413 F. Supp. 2d 891, 898-99 (W.D. Tenn. 2005) (same); Doe v. Saravia, 348 F. Supp. 2d 1112, 1145 (E.D. Cal. 2004) (same), with Enahoro v. Abubakar, 408 F.3d 877, 884-86 (7th Cir. 2005) (holding that claims for torture and summary execution must be brought pursuant to the TVPA); Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1025 (W.D. Wash. 2005) (appeal pending) (following Enahoro without discussion). 42 See supra note 41. As summarized by the district court in Saravia: Although the TVPA provides a statutory basis for a claim for extrajudicial killing, the enactment of the TVPA did not diminish the scope of the ATCA in any way. Plaintiff may assert a claim for extrajudicial killing under both the TVPA and ATCA. Doe v. Saravia, 348 F. Supp. 2d 1112, 1145 (E.D. Cal. 2004) (citation omitted). 43 416 F.3d 1242, 1250-51 (11th Cir. 2005). 44 Id. (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004)).

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provided in the Torture Victim Protection Act is the one which plaintiffs alleging torture or extrajudicial killing must plead.45 In a strong dissent, one member of the panel rejected this conclusion for three reasons. First, the plain text of the TVPA contains no repeal or limitation of the ATS. Since repeals by implication are disfavored, the statute should not be interpreted as a limitation of the reach of the ATS without a clear indication of congressional intent.46 Second, the legislative history of the TVPA stresses that it was intended to augment the ATS by extending the right to sue to U.S. citizens47 : The majority’s contention that the TVPA would be “meaningless” if it did not preempt the ATCA is therefore incorrect—the TVPA still serves its purpose of filling a gap in the ATCA’s coverage by providing a cause of action for American citizens for certain human rights violations. In this respect the TVPA does not even purport to “occupy the entire field” (as the majority claims) and, as Congress itself made clear, the ATCA was to remain intact to function as before. . . . The two acts thus are not competing provisions but are meant to be complementary and mutually reinforcing (if somewhat coextensive).48 Finally, the dissent rejects the majority’s reliance on Sosa: The majority, in claiming Sosa as authority for the preclusive effect of the TVPA, stands Sosa on its head. That case in fact relies on the TVPA as evidence of Congressional acceptance of torture as a norm enforceable via the ATCA. There is nothing, express or implied, in Sosa to suggest anything about preclusion.49 The later Aldana and Cabello decisions from the Ninth and Eleventh Circuits specifically reject the majority’s analysis in Enahoro. 3.

Using the TVPA to Fill Gaps in the ATS

As discussed in Chapter 2, Section C, the courts should look to multiple potential sources of law to determine the federal common law rules governing many ATS issues, choosing an approach that responds to the federal interests underlying the statute. One possible source of law is a closely analogous federal 45 46 47 48 49

Enahoro v. Abubakar, 408 F.3d 877, 884-85 (7th Cir. 2005). Id. at 886-87 (Cudahy, J., dissenting). Id. at 887-88. Id. at 888. Id. at 889.

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statute.50 As a result, many ATS decisions have borrowed from the TVPA to address issues that are not specified by the ATS, including the statute of limitations, the definition of command responsibility, and standing to sue.51 In other areas, however, such as exhaustion of domestic remedies, the courts have split on whether or not to apply TVPA rules to ATS claims.52 Each of these issues is discussed in subsequent chapters. D. WHO CAN SUE The TVPA authorizes an individual who has been subjected to torture to sue for damages and authorizes a suit for extrajudicial execution by either the legal representative of the person killed or by “any person who may be a claimant in an action for wrongful death.”53 There is no requirement that the individual or the representative be either a U.S. citizen or an alien, or that the plaintiff or the acts have any connection to the United States. The district court in Cabello held that the legal representative of a decedent can sue for damages for torture as well as for extrajudicial execution, despite the different wording of the two sections of the TVPA.54 Another district court has held that an association cannot sue for a death under the TVPA, since the association was neither the legal representative of the decedent nor a claimant in a wrongful death action.55 Determining who is qualified to sue for extrajudicial execution requires a choice of law analysis. The legislative history of the TVPA suggests that courts look to the law of the forum state to determine who is the “legal representative” of the estate of the deceased.56 Courts may also look at the law of the country 50 See CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 4518 (current through 2006 update) (footnotes omitted), stating that federal courts look to a number of sources to determine the content of federal common law, including, inter alia, “analogous federal statutes.” 51 See Chapter 15, Section A (statute of limitations); Chapter 10, Section B.2 (command responsibility); and Chapter 9, Section C (standing to sue under the ATS). 52 See Chapter 15, Section C. 53 TVPA, § 2(a). 54 Cabello v. Ferna ´ ndez Larios, 205 F. Supp. 2d 1325, 1334-35 (S.D. Fla. 2002) (TVPA does not stipulate that only torture victim has standing to bring a claim of torture); accord Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at *16 (S.D.N.Y. Feb. 28, 2002). 55 Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1268 (N.D. Ala. 2003). 56 H.R. REP. NO. 102-367, at 4 (1991).

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where the abuse took place. If the law of the forum state governs, a plaintiff may need formal appointment through state probate court in order to sue as the legal representative of the estate. If the law of the foreign country governs, the foreign law’s procedures must be followed.57 The TVPA legislative history also directs the courts to the law of the forum state to determine who may be a claimant in a wrongful death action58 —but states that “[w]here application of Anglo-American law would result in no remedy whatsoever for an extrajudicial killing . . . application of foreign law recognizing a claim by a more distant relation in a wrongful death action is appropriate.”59 As discussed at greater length in Chapter 9, two courts have relied on this language to permit claims by siblings for wrongful death in states that do not authorize siblings to sue for anything except direct financial losses.60 As stated by the district court in Xuncax, “concepts such as ‘torture’ and ‘disappearance’ [are] unfamiliar to the law of the Commonwealth [of Massachusetts]. Simply put, municipal law is ill-tailored for cases grounded on violations of the law of nations.”61 The Cabello court agreed, noting that this approach “comport[s] with both precedent and the plain meaning” of the TVPA.62 E. WHO CAN BE SUED The TVPA holds liable “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual” to either of the two specified violations—torture or extrajudicial execution. The cases have addressed several issues raised by this language, each of which is analyzed in detail in later chapters: • •

57

As discussed in Chapter 12, the courts are divided as to whether “an individual” includes corporate defendants. The courts have uniformly held that the TVPA includes liability for complicity in human rights violations, based in part on the legislative history, which states that the statute holds liable

See discussion in Chapter 9, Section C. H.R. REP. NO. 102-367, at 4 (1991). 59 S. REP. NO. 102-249, at 7 n.10 (1991). 60 Xuncax v. Gramajo, 886 F. Supp. 162, 191 (D. Mass. 1995); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1356-58 (S.D. Fla. 2001). 61 Xuncax v. Gramajo, 886 F. Supp. 162, 192 (D. Mass. 1995). 62 Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1356 (S.D. Fla. 2001). 58

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•

•

87

“persons who ordered, abetted, or assisted” in the violation, as well as those “with higher authority who authorized, tolerated or knowingly ignored” violations.63 This is discussed in Chapter 10, which addresses complicity liability in general. The requirement of “actual or apparent authority, or color of law, of any foreign nation” is addressed in Chapter 10, Section B, as part of a broader discussion of state action. As explained in Chapter 14, TVPA claims against foreign government officials should avoid application of foreign state immunity because the legislative history of the statute specifies that such officials are not entitled to immunity. TVPA suits against U.S. government defendants raise issues that are distinct from those raised by ATS claims. TVPA claims provide some significant litigation advantages.64 As examined in detail in Chapter 11, Section D, however, such claims have all failed to date in part because the courts have found that the U.S. government officials were not acting under the authority or under color of law of a “foreign nation,” as required by the TVPA.

F. RETROACTIVITY Every decision to reach the issue has concluded that the TVPA can be applied to violations committed before it was enacted in March 1992. A statute can be applied to prior conduct without triggering concerns about retroactivity if it does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.”65 That is, statutes only have a “genuinely ‘retroactive’ effect” if they attach “new legal consequences” to events completed before their enactment.66 Further, statutes that merely expand the jurisdiction of the federal courts are exempt from the presumption against retroactivity.67 63

S. REP. NO. 102-249, at 8-9 (1991). In particular, since the TVPA specifically authorizes a federal cause of action, the U.S. government cannot substitute into the lawsuit in place of a government employee acting within the scope of employment. See discussion of the Westfall Act, 28 U.S.C. Section 2679, in Chapter 11. 65 Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). See also Lindh v. Murphy, 521 U.S. 320, 325-26 (1997). 66 Landgraf v. USI Film Prods., 511 U.S. 244, 270, 277 (1994). 67 Id. at 274. 64

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The TVPA falls squarely within these guidelines. The statute does not impair rights, increase liability, or impose new duties. Rather, the TVPA recodifies a claim previously maintained by aliens under the ATS and by U.S. citizens under 28 U.S.C. Section 1331 (arising-under jurisdiction) or in state courts.68 The Eleventh Circuit rejected a challenge to the retroactive application of the TVPA in Cabello: The TVPA creates no new liabilities nor does it impair rights. . . . [P]rior to the TVPA, this Court could have exercised extraterritorial jurisdiction to reach wrongful death actions involving defendants and locations outside the forum jurisdiction. Further, as the district court correctly noted, torture, crimes against humanity, and cruel, inhumane, or degrading punishment have been a part of the United States and international law long before Fernandez’s alleged actions. Because the TVPA does not increase Fernandez’s liability or impair any of his rights, the Act does not create an impermissible retroactive effect if applied to his pre-TVPA actions.69 The Xuncax court also recognized that the TVPA falls within the Landgraf exception for jurisdictional statutes. “[A]pplying the TVPA retroactively allows Ortiz to bring suit in federal court rather than in a municipal court. It does not automatically change the rights or obligations of the parties.”70 68

See Chapter 6. Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005) (citations omitted). See also Alvarez-Machain v. United States, 107 F.3d 696, 703 (9th Cir. 1996) (reaching same result and applying TVPA to claims arising before it was enacted). As noted in Xuncax v. Gramajo, 886 F. Supp. 162, 177 (D. Mass. 1995), “[t]he universal condemnation of the use of torture was fully established prior to the events on which the instant claims turn.” 70 Xuncax v. Gramajo, 886 F. Supp. 162, 177 (D. Mass. 1995). As stated in Landgraf: We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. . . . Present law normally governs in such situations because jurisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties.” Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (citation omitted) (quoting Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 100 (1992) (Thomas, J., concurring)). 69

CHAPTER 5 JURISDICTION OVER STATES: THE FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA)

The Foreign Sovereign Immunities Act (FSIA)1 grants federal district courts jurisdiction over claims against foreign governments2 but only if the claim falls within a short list of enumerated exceptions to immunity.3 As the Supreme Court stated in Argentine Republic v. Amerada Hess Shipping Corp.,4 the “FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.” As a result, none of the other jurisdictional bases described in this book can be employed to gain jurisdiction over a foreign state or an agency or instrumentality of a foreign state. Thus, unless the particular litigation fits within one of the FSIA’s narrow exceptions to immunity, the foreign state cannot be sued. Moreover, since the FSIA concerns subject matter jurisdiction, the issue of whether an exception to immunity applies must be determined by the court whether or not raised by the defendant.5 A separate but important question is to what extent the FSIA applies to individual defendants acting under color of their official authority. The plain language of the FSIA refers to states and “an agency or instrumentality” of a foreign state and so does not appear to apply to suits against individual officials.6 Nevertheless, a number of courts have found that jurisdiction over such 1

28 U.S.C. §§ 1330, 1602-1611.

2

28 U.S.C. Section 1330(a) grants jurisdiction over “any nonjury civil action against a foreign state . . . with respect to which the state is not entitled to immunity.” 3

The exceptions are listed in 28 U.S.C. Section 1605(a).

4

488 U.S. 429, 443 (1989). Amerada Hess specifically rejected the argument that the ATS provided an additional, implied exception to the sovereign immunity. Id. at 437-38. 5

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-94 (1983). The defendant must present a prima facie case that it is a foreign sovereign. Virtual Countries v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir. 2002). The plaintiff then has the burden of going forward with evidence showing that, under the exceptions to the FSIA, immunity should not be granted. In re Terrorist Attacks II, 392 F. Supp. 2d 539 (S.D.N.Y. 2005). 6 28 U.S.C. § 1603 (a) (defining “foreign state” as including “an agency or instrumentality of a foreign state”).

89

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individual defendants should be analyzed under the FSIA. Even those courts, however, have generally held that human rights violations are not official acts subject to immunity. This issue is discussed in detail in Chapter 14, Section A. Even where a lawsuit is permitted under one of the exceptions to immunity, the FSIA imposes additional strict limits. The statute permits only compensatory damages against the foreign state itself, although punitive damages are allowed against an agency or instrumentality of a state.7 Moreover, execution of a judgment against a foreign state may be difficult or even impossible: most property belonging to a foreign state is immune from execution.8 The first section of this chapter discusses the structure of the FSIA and the handful of human rights cases against foreign states litigated successfully under the exceptions for torts committed within the United States, commercial activities, and waivers of immunity. Most of the recent human rights cases against foreign states rely on the “state sponsors of terrorism” exception added in 1996 and analyzed in Section B.9 That exception applies only if the foreign state defendant has been designated by the executive branch as a “state sponsor of terrorism.” In 2007, only five foreign states were so designated.10 If jurisdiction over a foreign state can be obtained under the FSIA, the next question that must be answered is what body of law provides the cause of action against the state. Section C addresses this particularly thorny issue, which has not been definitively resolved. A. THE FSIA AND THE TRADITIONAL EXCEPTIONS The FSIA grants foreign states a general immunity to suit in U.S. courts, with exceptions for broad categories of claims that generally reflect liability 7

“[A] foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages.” 28 U.S.C. § 1606. 8 28 U.S.C. § 1609 (“[T]he property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter.”). The exceptions codified in Sections 1610 and 1611 were originally limited to property at issue in the litigation, such as the property disputed in a commercial case or the proceeds of insurance policies. As discussed in Section B, additional exceptions were added over the last ten years as Congress attempted to facilitate the collection of judgments obtained under the “state sponsors of terrorism” exception enacted in 1996. 9 28 U.S.C. §1605(a)(7)(A). 10 The list includes: Cuba, Iran, North Korea, Sudan, and Syria. See U.S. DEPARTMENT OF STATE, COUNTRY REPORT ON TERRORISM (2005), available at http://www.state.gove/s/ ct/rls/c14813.htm.

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arising out of private tort and contract transactions. The Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp.11 rejected the argument that the statute permits an implied exception for human rights abuses. In Amerada Hess, the owners of a civilian oil tanker attacked during the Falklands War sought damages from the Argentine government. The Supreme Court held that the FSIA was “the sole basis for obtaining jurisdiction over a foreign state in our courts” and refused to imply an additional, non-statutory exception to immunity for ATS claims alleging violations of international law.12 Several cases have rejected a similar argument that FSIA immunity does not apply to violations of fundamental international law norms (jus cogens).13 Given the narrow list of exceptions, only a few claims against foreign governments outside the “state sponsors of terrorism” provision have been successful. In Siderman v. Republic of Argentina, for example, a suit alleging torture and property expropriation during that country’s “dirty war,” the Ninth Circuit found that Argentina had waived immunity by appearing in a related action in the courts of California.14 The court also held that Argentina’s expropriation of a U.S. citizen’s property triggered the international takings exception of the FSIA15 and that allegations of advertising and other activities within the United States were sufficient to trigger the commercial activity exception.16 A few human rights cases have employed the exception for torts occurring within the United States, which permits such actions unless the claim results 11

488 U.S. 429 (1989). Id. at 435-38. 13 See Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1173-74 (D.C. Cir. 1994); Siderman v. Republic of Argentina, 965 F.2d 699, 719 (9th Cir. 1992), cert denied, 507 U.S. 1017 (1993); Van Dardel v. U.S.S.R., 736 F. Supp. 1 (D.D.C. 1990). The argument in favor of finding an implied waiver of FSIA immunity in cases involving egregious violations is elaborated in Judge Wald’s dissenting opinion in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1176 (D.C. Cir. 1994). 14 965 F.2d 699, 720-23 (9th Cir. 1992), cert denied, 507 U.S. 1017 (1993) (applying the FSIA “waiver” exception, 28 U.S.C. § 1605(a)(1)). 15 Id. at 711-12 (applying 28 U.S.C. § 1605(a)(3)). 16 Id. at 708-11 (applying 28 U.S.C. § 1605(a)(2)). Siderman settled in September 1996, reportedly for $6 million. See Patrick J. McDonnell, A Long Battle for Vindication Pays Off, L.A. TIMES, Sept. 16, 1996, at A1. 12

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from the performance of a “discretionary function.”17 The primary purpose of the exception is to address incidents such as traffic accidents caused by employees acting within the scope of their employment for a foreign nation.18 Letelier v. Republic of Chile, an important human rights case employing this exception, sought damages for the murder of a former Chilean official on the streets of Washington, D.C.19 The court found that the murder was within the exception to immunity for tortious activity occurring within the United States and that such a murder was not immunized as within the discretionary function of the state. Similarly, in Liu v. The Republic of China20 and Estate of Domingo v. Republic of Philippines,21 courts found that suits for murders committed in the United States by agents of the foreign governments fell within the FSIA exception. In contrast, In re Terrorist Attacks on September 11, 2001, a case against various Saudi princes and Saudi Arabia itself, found that two Saudi high officials were immune from suit under this exception, because Saudi Arabia’s aid to various Islamic charities was not sufficiently connected to the September 11 attacks to be a foreseeable cause of the plaintiffs’ injuries.22 The court also held that the decision to give such aid was grounded in social, economic, and 17

28 U.S.C. Section 1605(a)(5) grants an immunity exception for suits: in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to— (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused. Lower courts have held that the test for a discretionary function under the FSIA follows the same general principles as the same exception in the Federal Tort Claims Act, 28 U.S.C. Section 2680(a). See Liu v. The Republic of China, 892 F.2d 1419, 1431 (9th Cir. 1989) (citing Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980)). 18 See, e.g., Randolph v. Budget Rent-A-Car, 97 F.3d 319 (9th Cir. 1996). 19 488 F. Supp. 665 (D.D.C. 1980). 20 892 F.2d 1419, 1426 (9th Cir. 1989). Liu involved the murder in San Francisco of a journalist, Henry Liu, by agents of the Republic of China (Taiwan). 21 Civ. No. 82-1055 (W.D. Wash. July 17, 1984). Domingo was filed by the families of two trade unionists murdered in Seattle by agents of the Philippine government. After a $14 million verdict for the plaintiffs, the case settled for $3 million. Jerry Large, A Life of Justice, SEATTLE TIMES, Aug. 24, 1995, at A1. 22 349 F. Supp. 2d 765 (S.D.N.Y. 2005).

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political policy and within FSIA’s discretionary function exemption from tort liability. Presumably, had the link between such aid and the September 11 attacks been closer (e.g., had the funding been given directly for the attacks), the court might have found that it was not protected as a discretionary function.23 Tortious acts committed by foreign states outside the United States rarely fit any of the FSIA exceptions; as a result, suits to recover for such acts against foreign states are usually barred in U.S. courts. And, although the commercial activities exception applies to acts outside of the United States that have “a direct effect” within this country,24 the courts have uniformly rejected the argument that it encompasses injuries sustained abroad that cause ongoing injuries when the plaintiff returns to the United States. In Martin v. South Africa, for example, an African American citizen of the United States was permanently paralyzed after a car accident in South Africa because government hospitals refused to treat his injuries.25 The Second Circuit dismissed his lawsuit as barred by sovereign immunity, finding that it did not fall within any FSIA exception.26 Doe v. Unocal also rejected an argument that activities of the Burmese 23 In a subsequent ruling, the court in In Re Terrorist Attacks II, 392 F. Supp. 2d 539 (S.D.N.Y. 2005), dismissed the Saudi High Commission for the same reason—the discretionary function exception. See also Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379, 382 (S.D. Tex. 1994) (court determines whether an act is discretionary by asking whether there was a choice of conduct that was grounded in social, economic, or political policy; Saudi officers’ retention of the plaintiffs’ travel papers at the airport qualified as a discretionary function). 24 28 U.S.C. Section 1605(a)(2) provides an exception to immunity in any case: in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 25 836 F.2d 91 (2d Cir. 1987). 26 Id. at 93-105. Similarly, the D.C. Circuit found that the continued suffering of a survivor of a Nazi forced labor camp did not constitute “a direct effect” in the United States under this exception. Princz v. Federal Republic of Germany, 26 F.3d 1166, 117273 (D.C. Cir. 1994) (“The lingering effects of a personal injury suffered overseas can not be sufficient to satisfy the direct effect requirement of the FSIA.”). See also Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1316 (D.D.C. 1985) (rejecting the argument that emotional distress caused by a tort committed outside the United States triggers the Section 1605(a)(5) tort exception).

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government in connection with a pipeline project in Burma had “a direct effect” in the United States sufficient to trigger the commercial activities exception.27 In Saudi Arabia v. Nelson, the Supreme Court rejected plaintiff’s argument that his torture fit within the FSIA’s exception for commercial activity, although the plaintiff was recruited in the United States to work in Saudi Arabia and alleged that he was tortured in retaliation for his complaints about business practices in the state-owned hospital in which he worked.28 Cicippio v. Islamic Republic of Iran rejected application of this exception to a claim based on hostage-taking for profit, holding that the exception requires that “the act giving rise to jurisdiction must itself take place in a commercial context.”29 In Re Terrorist Attacks on September 11, 2001 also rejected application of the commercial activities exception to the giving of charitable contributions, even if such contributions constituted the commercial activity of money laundering, holding that the commercial activity must be lawful.30 B. THE STATE SPONSORS OF TERRORISM EXCEPTION 1.

Overview

In 1996, Congress added the “state sponsors of terrorism” exception to the FSIA, waiving sovereign immunity for personal injury suits by U.S. nationals31 involving acts of torture, extrajudicial killing, aircraft sabotage, hostage-taking, or the provision of material support or resources for such an act.32 Each of the 27

963 F. Supp. 880, 888 (C.D. Cal. 1997).

28

507 U.S. 349 (1993).

29

30 F.3d 164, 168 (D.C. Cir. 1994). See also Mwani v. Bin Laden and Afghanistan, 417 F.3d 1, 15 (D.C. Cir. 2005) (financial relationship between Taliban and Al Qaeda not the sort of action by which private parties engage in commerce). 30

349 F. Supp. 2d 765, 793 (S.D.N.Y. 2005). See also Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38, 45-46 (D.D.C. 2000) (citing Saudi Arabia v. Nelson, 507 U.S. 349, 34950 (1993)) (rejecting the plaintiffs’ effort to use the commercial activity exception because the actions complained of were taken by a sovereign acting in a governmental capacity). 31

8 U.S.C. Section 1101(a)(22) defines the term “national of the United States” as “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 32

28 U.S.C. Section 1605(a)(7), provides for an exception to sovereign immunity for cases: in which money damages are sought against a foreign state for suits for personal injury or death that was caused by an act of torture, extrajudicial

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four violations is defined by reference to other U.S. statutes or international treaties, as discussed at length in Chapter 7.33 This complicated statute has been amended several times, particularly with reference to the collection of judgments. Nevertheless, the basic structure is relatively simple. For the four listed violations, the FSIA exception abrogates the sovereign immunity of countries that have been designated by the U.S. State Department as “state sponsors of terrorism.”34 A country must have been designated at the time the act sued upon occurred, unless it is later designated as a result of the act.35 As of early 2007, five countries were subject to suit: Cuba, Iran, North Korea, Sudan, and Syria. Iraq and Libya were also on the list when the exception was enacted in 1996 but have since been removed.36 The statute was initially enacted in response to a lobbying campaign by the families of those killed in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, after their initial lawsuit against Libya was dismissed because of sovereign immunity.37 Many of the well-known bombings, hostage-takings, and incidents of torture against U.S. nationals abroad have been subject to suit under killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment or agency. 33 28 U.S.C. Section 1605(e) provides: (1) the terms “torture” and “extrajudicial killing” have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991; (2) the term “hostage taking” has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages; and (3) the term “aircraft sabotage” has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. See discussions of these definitions in Chapter 7. 34 “State sponsors of terrorism” are designated pursuant to 50 U.S.C. App. Section 2405(j) or 22 U.S.C. Section 2371. See 28 U.S.C. § 1605(a)(7)(A). 35 Id. 36 The Iraq designation was suspended in May 2003 and removed in 2004. Libya was removed in 2006. 37 See ALLAN GERSON & JERRY ADLER, THE PRICE OF TERROR (2001), for a description of the enactment of the legislation. The initial proposal would have waived the sovereign immunity of all foreign governments for acts of terrorism; a last-minute amendment produced the final version, limited to “state sponsors of terrorism.”

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this exception. These include the shooting down of the Brothers to the Rescue airplane by Cuba38 ; the bombing of the Marine barracks in Lebanon39 ; the bombing of the U.S. Embassy in Kenya40 ; the hostage-taking in Iran during the 1979 revolution41 ; Pan Am Flight 10342 ; the bombing of the U.S.S. Cole43 ; and the September 11, 2001, attacks.44 The exception applies only to suits where the claimant or the victim was a national of the United States.45 If the act sued upon occurred in the foreign state, the plaintiff must offer the state an opportunity to arbitrate the claim.46 The statute of limitations is ten years, but it can be much longer because principles of equitable tolling apply during the period for which the foreign state was immune from suit.47 The exception is also expressly retroactive.48 38

Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997). Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261 (D.D.C. 2005). 40 Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005). 41 Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003). 42 Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998). This case settled in 2003, with Libya guaranteeing the families of the victims between $5 and $10 million each. See Anthony J. Sebok, Libya, Lockerbie, and the Long-Delayed Settlement Relating to Pan Am Flight 103, available at http://writ.corporate.findlaw.com/ sebok/20030908.html. 43 Rux v. Republic of Sudan, Civ. No. 04-428, 2005 WL 2086202 (E.D. Va. Aug. 26, 2005). 44 Smith v. Federal Reserve Bank of N.Y., 280 F. Supp. 2d 314 (S.D.N.Y. 2003). 45 28 U.S.C. § 1605(a)(7)(B)(ii). A national of the United States is defined in 8 U.S.C. Section 1101(a)(22): “The term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 46 28 U.S.C. § 1605(a)(7)(B)(i). 47 28 U.S.C. § 1605(f). 48 28 U.S.C. Section 1605 provides: “The amendments made by this subtitle shall apply to any cause of action arising before, on or after the date of the enactment of this Act [April 24, 1996].” Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221(c), 110 Stat. 1214 (1996) (codified as amended at 28 U.S.C. § 1605 (2000) (alteration in original)). The statute provides detailed provisions under which the Attorney General can stay any request for discovery on the United States if it interferes with criminal prosecutions or national security operations. 28 U.S.C. § 1605(g). 39

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Collecting Judgments

Plaintiffs have won judgments against foreign government defendants in many of these lawsuits, often through default judgments, but have had difficulty collecting damage awards. One obstacle is that most property owned by foreign governments is immune from process in the United States. In addition, the executive branch has intervened frequently to block collection, arguing that enforcement of judgments against foreign sovereigns violates U.S. treaty obligations and interferes with foreign policy.49 In response, Congress enacted a series of additional provisions broadening the categories of property subject to seizure and limiting the president’s power to block such seizures.50 One amendment permitted some plaintiffs to collect compensatory damages from the U.S. government in return for waiving the right to collect judgments from the foreign sovereigns. As of July 2003, the United States had paid $386 million to 14 victims.51 A bill introduced in 2003 proposed that victims of state-sponsored international terrorism be compensated by the U.S. government, with the government retaining the right to collect from the foreign government responsible for the injuries.52 As of early 2007, the bill had not been enacted, however, and the impasse between Congress, the executive branch and the courts over the enforcement of judgments seemed likely to continue. 49 For a discussion of the State Department’s concerns about the “state sponsors of terrorism” litigation, see Sean D. Murphy, Terrorist-State Litigation in 2002-03, 97 AM. J. INT’L L. 966, 973-74 (2003) (quoting the congressional testimony of William H. Taft IV, Legal Adviser, U.S. Dep’t of State). 50 In a series of amendments in 1999, 2000, and 2002, Congress attempted to facilitate collection of “terrorist” state judgments by withdrawing protection from a wide range of foreign sovereign property, but it permitted the president to waive implementation of the new provision. President Clinton issued blanket waivers that were reissued by President Bush when he took office. See Diane Lourdes Dick, The Case of the Little Yellow Cuban Biplane, 57 FLA. L. REV. 91, 102-08 (2005), for citations and summaries of the amendments. The executive branch has intervened in several ongoing cases, attempting to block seizure of foreign government assets even when such funds have been frozen by the executive branch and arguing for narrow interpretations of the congressional provisions designed to assist plaintiffs to collect. For reviews of the legislation and the litigation, see Murphy, supra note 49; and Sean D. Murphy, U.S. Judgments Against Terrorist States, 95 AM. J. INT’L L. 134 (2001). 51 See Taft testimony, quoted in Murphy, supra note 49, at 973. 52 The Benefits for Victims of International Terrorism Act of 2003, S. 1275, 108th Cong., 1st Sess. (2003). The bill was introduced in the Senate at the request of the State Department in June 2003, but no action has been taken since.

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3.

Suits Against Government Officials

The application of FSIA immunities to individual foreign government officials is an unresolved area of law analyzed at length in Chapter 14, Section A. As discussed in that chapter, although the terms of the FSIA do not appear to apply to individuals, several circuits have nevertheless applied it to individuals in standard tort and contract cases. Most courts, however, have held that the FSIA does not immunize individuals accused of human rights abuses, because such abuses are not within the scope of their employment. Officials of governments designated “state sponsors of terrorism” fall within the distinct legal structure created by the Flatow Amendment,53 which explicitly creates a cause of action against them and implicitly waives any immunity to which they may otherwise be entitled.54 The D.C. district court has interpreted the amendment as providing a cause of action against such officials in their individual or personal capacities but not in their official capacities.55 The advantage of suits against individuals in their personal capacity is that enforcement of judgments against individuals does not face the daunting obstacles posed by enforcement against sovereign states. In addition, the Flatow 53

This provision is known as the “Flatow Amendment” because its sponsor referred to the Flatow family—whose daughter, Alisa, was killed by a Palestinian suicide bomber while studying in Israel—when speaking in support of the statute. Joseph W. Dellapenna, Civil Remedies for International Terrorism, 12 DEPAUL BUS. L.J. 169, 256 n.439 (19992000). 54 28 U.S.C. § 1605 note. The Flatow Amendment provides (a) An official, employee, or agent of a foreign state designated as a state sponsor of terrorism . . . while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) . . . for money damages which may include economic damages, solatium, pain and suffering, and punitive damages if the acts were among those described in section 1605(a)(7). (b) . . . No action shall be maintained under this action if an official, employee, or agent of the United States, while acting within the scope of his or her office, employment, or agency would not be liable for such acts if carried out within the United States. Jurisdiction over cases brought under the Flatow Amendment would be provided by 28 U.S.C. Section 1605(a)(7) or arguably by federal question jurisdiction under 28 U.S.C. Section 1331. 55 Wyatt v. Syrian Arab Republic, 304 F. Supp. 2d 43 (D.D.C. 2004).

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Amendment allows punitive damages, which are not permitted against states.56 The disadvantage, of course, is that individuals may not have assets in the United States against which a judgment can be enforced. C. THE CAUSE OF ACTION IN FSIA LITIGATION Subject matter jurisdiction over the state under any of the exceptions to foreign sovereign immunity is only the first step in the process of holding the state liable. The second step is determining the cause of action (right to sue) against the foreign state. While the exceptions to immunity in the FSIA give the court jurisdiction and require that the foreign state be treated as a private entity,57 those exceptions do not establish a cause of action. These are separate issues.58 The question of what body of law, if any, grants the plaintiffs a cause of action against the state has not been definitely determined. Generally, the court will look to the choice of law rules of the forum state; therefore, different results can be arrived at depending on those laws. Most cases under the FSIA have considered choice of law issues within the commercial context and have applied state rules of decision.59 However, in tort cases, the choice of law rules could well point to the place of injury. The choice of law question is particularly complex in cases filed under the “state sponsors of terrorism” exception. One of the earliest cases under the exception, Alejandre v. Republic of Cuba,60 held that the “Flatow Amendment” created a cause of action for such cases. The amendment, adopted five months after the terrorism exception was enacted, states that “an official, employee, or agent” of a foreign state designated as a “state sponsor of terrorism” is liable for 56

Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74 (D.D.C. 2006). 28 U.S.C. Section 1606 provides in part that “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 58 “Every case brought against a foreign state raises two distinct and crucial legal questions. First, the Court must look to whether it has jurisdiction to hear the claim. . . . Second, the court must consider the actual liability of the defendant sovereign.” Holland v. Islamic Republic of Iran, Civ. No. 01-1924, 2005 U.S. Dist. LEXIS 40254, at * 26-27 (D.D.C. Oct. 31, 2005) (citation omitted). 59 See, e.g., First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620 (1983); Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1025 (9th Cir. 1987); Guzel v. State of Kuwait, 818 F. Supp. 6, 10 (D.D.C. 1993). 60 996 F. Supp. 1239 (D.D.C. 1997). 57

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acts that fall within the terrorism exception to FSIA.61 Alejandre held that the Flatow Amendment created a cause of action against foreign states and their agencies and instrumentalities, even though it actually refers only to individuals. The court reasoned that the amendment was intended to implement the immunity exception, and it held that the doctrine of respondeat superior, coupled with the close relationship of the amendment to the terrorism exception, indicated an intent to provide a cause of action against the foreign state.62 Alejandre awarded $187.7 million to the families of the U.S. citizens killed when Cuba shot down a plane operated by Brothers to the Rescue. Other courts initially followed suit.63 More recently, however, the D.C. Circuit has rejected the Alejandre analysis and left in doubt the source of a cause of action against foreign states in terrorism cases. In a series of cases beginning in 2004, the D.C. Circuit held that neither 28 U.S.C. Section 1607(a)(7) itself nor the Flatow Amendment creates a private cause of action against foreign states.64 The court dismissed a complaint against Iran for failure to state a claim, but it remanded the case to the district court to permit plaintiffs an opportunity to state a cause of action from another body of law, including state law. In Acree v. Republic of Iraq,65 the D.C. Circuit held that generic common law torts could not be the source of a federal cause of 61

28 U.S.C. § 1605 note. As the court said in Alejandre: The Civil Liability Act [“Flatow Amendment”] creates a cause of action against agents of a foreign state that act under the conditions specified in FSIA section 1605(a)(7). It thus serves as an enforcement provision for acts described in section 1605(a)(7). If Plaintiffs prove an agent’s liability under this Act, the foreign state employing the agent would also incur liability under the theory of respondeat superior. Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1249 (D.D.C. 1997). 63 See, e.g., Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998). 64 In Cicippio-Puelo v. Islamic Republic of Iran, 353 F.3d 1024, 1032 (D.C. Cir. 2004), the D.C. Circuit held that “neither 28 U.S.C. § 1605(a)(7), nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government.” The court concluded that the “Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not the foreign state itself.” Id. As to those actions, the court limited the cause of action to claims against those officials in their individual capacities. Id. 65 370 F.3d 41 (D.C. Cir. 2004). 62

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action under the FSIA, ruling that a “plaintiff proceeding under FSIA must identify a particular cause of action arising out of a specific source of law.”66 District courts in the District of Columbia after Cicippio-Puelo and Acre have looked to domestic state common and statutory law as the source of causes of action against foreign states and their instrumentalities in cases filed pursuant to the “state sponsors of terrorism” exception to the FSIA. For example, the court in Holland v. Islamic Republic of Iran rejected plaintiffs’ argument that some combination of “the Flatow Amendment, the TVPA, federal common law, foreign law, and international law provides a basis for their causes-of-action against Iran.”67 The court concluded that the plaintiffs could assert claims under state common and statutory law, noting that, as a “general rule, state law should provide a cause of action against a foreign nation in a section 1605(a)(7) claim.”68 66

Id. at 55. Civ. No. 01-1924, 2005 U.S. Dist. LEXIS 40254, at *63 (D.D.C. Oct. 31, 2005). See also Prevatt v. Islamic Republic of Iran, 421 F. Supp. 2d 152 (D.D.C. 2006). 68 Holland v. Islamic Republic of Iran, Civ. No. 01-1924, 2005 U.S. Dist. LEXIS 40254, at *63 (D.D.C. Oct. 31, 2005). 67

CHAPTER 6 OTHER GROUNDS FOR HUMAN RIGHTS LITIGATION

Most human rights litigation in U.S. courts is filed pursuant to one of the statutes addressed in the previous chapters: the Alien Tort Statute (ATS),1 the Torture Victim Protection Act (TVPA),2 or one of the exceptions to the Foreign Sovereign Immunities Act (FSIA).3 This chapter addresses additional grounds for human rights litigation, both jurisdictional grounds and sources for a cause of action.4 For any federal claim, the complaint must state both the basis for federal subject matter jurisdiction and a cause of action. Many human rights claims can be based on more than one jurisdictional provision. TVPA claims filed by non-U.S. citizens, for example, trigger jurisdiction both under the general federal question statute, 28 U.S.C. Section 1331, and under the ATS. The Anti-Terrorism Act,5 discussed below in Section B, appears to create jurisdiction as well as a cause of action, but Section 1331 would also provide 1

28 U.S.C. § 1350. 28 U.S.C. § 1350 (note). 3 28 U.S.C. §§ 1330, 1602-1611. 4 If human rights violations occur within the United States or within U.S. control, claims may be brought under federal or state civil rights statutes or under the U.S. Constitution. Several ATS cases have included domestic claims as well as ATS claims. See, e.g., Rasul v. Bush, 542 U.S. 466 (2004) (holding that a federal court has jurisdiction to entertain a claim by Guantanamo detainees under 28 U.S.C. Sections 1331 and 1350); Martinez v. City of Los Angeles, 141 F.3d 1373 (C.D. Cal. 1998) (alleging constitutional and ATS claims arising out of the arrest of a Mexican national by Mexican authorities acting at the behest of Los Angeles police); Doe v. The Gap, Civ. No. 01-0031, 2001 WL 1842389 (D. N. Mar. I. 2001) (alleging violations of the ATS, RICO, and federal indentured servitude and peonage statutes on behalf of foreign guest workers in the Mariana Islands). Discussion of federal and state civil rights statutes and the availability of constitutional remedies are beyond the scope of this book. These issues are discussed in many sources, including MICHAEL AVERY, KAREN BLUM & DAVID RUDOVSKY, POLICE MISCONDUCT: LAW AND LITIGATION (3d ed. 2006). 5 18 U.S.C. §§ 2331-2339D. 2

103

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jurisdiction. Similarly, human rights claims may be based upon multiple causes of action. Torture, for example, can be litigated: (1) as a common law claim for a violation of international law, actionable under the ATS; (2) as a specific federal cause of action created by the TVPA; or (3) as a state claim for assault and battery. Each alternative offers different advantages and constraints. Some are firmly based in current case law, while others may be subject to challenge in future cases. As a result, it is generally good practice to consider pleading all possible grounds for jurisdiction, as well as causes of action based on different legal theories. A. SECTION 1331 AND FEDERAL COMMON LAW CLAIMS The federal question jurisdiction statute, 28 U.S.C. Section 1331, states that “[t]he district courts shall have jurisdiction of all civil cases arising under the Constitution, laws, or treaties of the United States.” This statute authorizes federal court jurisdiction over human rights claims arising under federal statutes and treaties. For example, Section 1331 provides one basis for federal jurisdiction over human rights claims created by statutes such as the TVPA, since such claims “arise under” a law of the United States. In addition, Section 1331 provides federal subject matter jurisdiction over some common law claims for violations of international law. Litigating a claim under Section 1331, however, involves two separate steps: first, determining whether Section 1331 provides jurisdiction; and second, identifying a cause of action. Court decisions often combine the two steps. Section 1331 may be crucial for human rights plaintiffs whose claims do not fall within one of the human rights statutes. For them, a common law claim under Section 1331 may be the only means by which they can bring suit. For example, although U.S. citizens can sue under the TVPA, the FSIA, and the Anti-Terrorism Act (discussed in Section B), each of these statutes is limited to particular claims and/or particular defendants. The broader reach of the ATS is available only to aliens, not to citizens. Thus, U.S. citizens seeking remedies for violations such as war crimes, slavery, or disappearance may be denied a forum in federal court if they cannot assert Section 1331 jurisdiction over a claim founded in federal common law.6 Section A.1 of this chapter discusses Section 1331 jurisdiction over human rights claims. Section A.2 analyzes the debate over whether the federal courts can recognize a common law cause of action for such claims. 6

As discussed in Section D, a U.S. citizen could possibly sue in state court or could sue a citizen of a foreign state in federal court under diversity jurisdiction.

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1.

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Section 1331 Jurisdiction

The federal question jurisdiction under 28 U.S.C. Section 1331 extends to cases “arising under” federal common law as well as those “arising under” statutes and treaties. As stated by the Supreme Court, Section 1331 “will support claims founded on federal common law as well as those of a statutory origin.”7 The Court has also held that the law of nations—customary international law—is part of federal common law.8 This principle was articulated by Chief Justice Marshall, who wrote that U.S. courts are “bound by the law of nations, which is part of the law of the land.”9 In Fila´rtiga v. Pen˜a-Irala, the Second Circuit affirmed that international law is part of the law of the United States: The law of nations forms an integral part of the common law, and a review of the history surrounding the adoption of the Constitution demonstrates that it became a part of the common law of the United States upon the adoption of the Constitution.10 As a result, the federal courts have subject matter jurisdiction over claims for violations of international law. For example, in Herero People’s Reparations Corp. v. Deutsche Bank, members of the Herero tribe of Namibia alleged that Germany launched a campaign of atrocities against the Herero in the late 19th and early 20th centuries that included torture, slavery, and genocide.11 The 7

Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972). See also Local Div. 732, Amalgamated Transit Union v. Metropolitan Atlanta Rapid Transit Auth., 667 F.2d 1327, 1344 (11th Cir. 1982) (a case “ ‘arises under the laws of the United States’ for the purposes of [Section 1331] if the disposition of the issues set out in the complaint requires the application of federal common law”); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1544 (N.D. Cal. 1987) (Forti I) (“a case presenting claims arising under customary international law arises under the laws of the United States for purposes of federal question jurisdiction”); CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 3563 (3d ed. 1999). 8 The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); The Paquete Habana, 175 U.S. 677, 700 (1900). More recently, the Supreme Court directed federal courts to apply international norms as part of federal common law in a series of expropriation cases commencing with Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). See also Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act After Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 57 (1981) (“From the beginning of the Republic it has been assumed that international law is incorporated directly into the federal common law.”). 9 The Nereide, 13 U.S. (9 Cranch) 388, 423, 423 (1815). 10 630 F.2d 876, 886 (2d Cir. 1980) (emphasis added). 11 370 F.3d 1192 (D.C. Cir. 2004).

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Herero sought damages from two German companies for their participation in the atrocities. The District of Columbia Circuit upheld “arising under” jurisdiction over these claims based on customary international law. It found that the claim was not “insubstantial and frivolous” and was therefore sufficient to support subject matter jurisdiction.12 In Fila´rtiga, the Second Circuit noted that it could have taken jurisdiction over the Fila´rtigas’ claims under Section 1331 as well as 28 U.S.C. Section 1350: We recognize that our reasoning might also sustain jurisdiction under the general federal question provision, 28 U.S.C. § 1331. We prefer, however, to rest our decision upon the Alien Tort Statute, in light of that provision’s close coincidence with the jurisdictional facts presented in this case.13 12

Id. at 1195. As the circuit court explained: A claim is too “insubstantial and frivolous” to support federal question jurisdiction when it is “obviously without merit” or when “its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” Id. at 1194-95 (quoting Hagans v. Lavine, 415 U.S. 528, 538 (1974)). In the Herero case, plaintiffs had originally filed their claim in state court; defendants removed to federal court. Id. at 1193. The district court found that it had subject matter jurisdiction to hear the federal common law claims but dismissed them for failure to state a claim. Id. at 1193-94. Plaintiffs appealed the finding of federal subject matter jurisdiction (because they objected to removal and preferred to remain in state court), but the District of Columbia Circuit affirmed both that ruling and the dismissal for failure to state a claim. Id. at 1194-95. Herero makes clear that the federal courts may have jurisdiction even if the underlying claim does not state a cause of action: After finding that it had jurisdiction, the D.C. Circuit dismissed the case for failure to state a claim. Id. 13 Fila ´ rtiga, 630 F.2d at 887 n.22. See also KENNETH C. RANDALL, FEDERAL COURTS AND THE HUMAN RIGHTS PARADIGM 59-90 (1990); Anthony D’Amato, What Does TelOren Tell Lawyers? Judge Bork’s Concept of the Law of Nations Is Seriously Mistaken, 79 AM. J. INT’L L. 92, 101 (1985); Steven M. Schneebaum, The Enforceability of Customary Norms of Public International Law, 8 BROOK. J. INT’L L. 289 (1982). In the Karadzic decision, the Second Circuit noted that it had “recognized the possibility of [Section] 1331 jurisdiction in Fila´rtiga,” but once again declined to reach the issue, because jurisdiction had already been established under the ATS and the TVPA. Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995).

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A number of pre-Sosa district courts upheld Section 1331 jurisdiction in cases alleging violations of internationally protected human rights. In Forti v. Suarez-Mason,14 for example, a case on behalf of an alien against an Argentine general, the court found that claims for summary execution and prolonged arbitrary detention fell within the jurisdictional grant of Section 1331.15 In a footnote to its discussion of subject matter jurisdiction under the ATS, the Ninth Circuit in Sarei v. Rio Tinto held that the jurisdictional analysis under Section 1331 is the same as that for the ATS.16 Noting that Sosa established that ATS claims were based on federal common law, the Ninth Circuit concluded that Section 1331 was an alternative basis for federal court jurisdiction. Sarei quoted Justice Scalia’s statement that “a federal-common-law cause of action of the sort the Court reserves discretion to create would ‘arise under’ the laws of the United States . . . for purposes of statutory federal-question jurisdiction.”17 14

672 F. Supp. 1531 (N.D. Cal. 1987).

15

Id. at 1544 (relying on Republic of Philippines v. Marcos, 818 F.2d 1473, 1477 (9th Cir. 1987), where the Ninth Circuit held that Section 1331 jurisdiction extends to claims that arise under the Constitution or laws of the United States and are not “wholly unsubstantial and frivolous”); see also Abebe-Jiri v. Negewo, Civ. No. 90-2010 at 7 (N.D. Ga. Aug. 20, 1993), aff’d on other grounds, 72 F.3d 844 (11th Cir. 1996) (“The claims of all of the plaintiffs ‘arise under’ United States law, which includes customary international law as part of U.S. common law.”); In re Estate of Marcos Litigation, No. MDL 840 (D. Haw. Nov. 20, 1991), aff’d, 978 F.2d 493 (9th Cir. 1992) (case of Jaime Piopongco) (same); Martinez-Baca v. Suarez-Mason, No. 87-2057, 1988 U.S. Dist. LEXIS 19470, at *5 (N.D. Cal. Apr. 22, 1988) (in a case by a U.S. citizen against an Argentine general, the court found Section 1331 jurisdiction, stating that “claims . . . [arising] under customary international law . . . arise[] under the laws of the United States for purposes of [f]ederal question jurisdiction.” (quoting Forti v. Suarez-Mason, 672 F. Supp. 1531, 1544 (N.D. Cal. 1987))). The Supreme Court in 2005 recognized that Section 1331 may grant federal jurisdiction over state law claims even in the absence of a federal cause of action, where the case presents a substantial federal interest. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). See RANDALL, supra note 13, at 86-89, for a review of the federal ingredients involved in a human rights case brought under Section 1331. Randall explains that even if a cause of action is given by municipal law, there may be sufficient federal elements to sustain jurisdiction. See also William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 511 n.248 (1986). 16

Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *42, n.5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 17 Id. (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 745 n.* (2004) (Scalia, J., concurring in judgment)).

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Sarei also looked to Illinois v. City of Milwaukee, which concludes that “§ 1331 jurisdiction will support claims founded upon federal common law.”18 A handful of controversial decisions has expanded this interpretation of federal question jurisdiction to reach claims merely because they touch upon foreign relations or the sovereign interests of the country where the events took place. In re World War II Era Japanese Forced Labor Litigation, for example, held that claims that implicate the federal common law of foreign relations trigger federal jurisdiction.19 Similarly, Torres v. Southern Peru Copper Corp. found federal subject matter jurisdiction over a dispute between private parties that implicated the “vital economic and sovereign interests” of Peru.20 This expansion of the doctrine has not been widely accepted. 2.

The Cause of Action in Section 1331 Claims

Even if a claim based on international law triggers federal subject matter jurisdiction, it could still be dismissed for failure to state a cause of action. In Herero, for example, the court upheld jurisdiction but dismissed on the merits. The court held that federal common law did not provide a private cause of action for violations of customary international law.21 The D.C. Circuit in Herero refused to recognize a federal common law cause of action, although the Supreme Court has recognized such a cause of action in other circumstances.22 18

406 U.S. 91, 100 (1972). 114 F. Supp. 2d 939, 942-44 (N.D. Cal. 2000). 20 113 F.3d 540, 543 n.8 (5th Cir. 1997); see also Republic of Philippines v. Marcos, 806 F.2d 344, 352 (2d Cir. 1986) (finding that if “plaintiff’s claims necessarily require determinations that will directly and significantly affect [United States] foreign relations,” state law claims can be removed to federal court). 21 Herero People’s Reparations Corp. v. Deutsche Bank, 370 F.3d 1192, 1194-95 (D.C. Cir. 2004). 22 See, e.g., First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) (addressing international law limits on manipulation of the corporate form); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) (discussing international law governing unlawful expropriation); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (addressing expropriations); The Paquete Habana, 175 U.S. 677 (1900) (deciding a prize case); La Amistad de Rues, 18 U.S. (5 Wheat.) 385 (1820) (deciding a prize case); see also Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1255 (C.D. Cal. 1999) (“It is also clear, however, that federal courts may imply a personal right of action for violations of jus cogens norms of international law”). But see Xuncax v. Gramajo, 886 F. Supp. 162, 191, 194 (D. Mass. 1995) (holding that separate statute granting a cause of action is necessary). 19

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The Supreme Court in Sosa held that, in enacting the ATS, Congress understood that the federal courts would recognize federal common law claims for a narrow range of international human rights violations. In note 19, the Court contrasted the ATS and 28 U.S.C. Section 1331, stating that there was no reason to think that Section 1331 was enacted pursuant to a similar understanding.23 But Sosa leaves open the possibility that litigants or scholars might demonstrate that Section 1331 actually had been enacted on a similar understanding. That is, it is possible that Congress enacted Section 1331 with the understanding that the federal courts would exercise their common law powers to recognize a cause of action for some international law violations, and that recognition of such claims for citizens under Section 1331 is fully consistent with the Sosa Court’s understanding of the federal courts’ common law powers.24 While a few pre-Sosa cases stated that human rights claims can be brought under Section 1331,25 others indicated that although Section 1331 might provide jurisdiction, it does not provide a cause of action, and rejected international law as a source of the cause of action.26 For example, Judge Bork said in Tel-Oren v. 23

Footnote 19 states: Our position does not, as Justice Scalia suggests, imply that every grant of jurisdiction to a federal court carries with it an opportunity to develop common law (so that the grant of federal-question jurisdiction would be equally as good for our purposes as § 1350). Section 1350 was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable congressional assumption. Further, our holding today is consistent with the division of responsibilities between federal and state courts after Erie, as a more expansive common law power related to 28 U.S.C. § 1331 might not be. Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004) (citation omitted). 24 This issue was briefed in Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005) (appeal pending), a case filed by the family of Rachel Corrie, who was killed by a Caterpillar bulldozer operated by the Israel Defense Forces while she was protesting house demolitions in Gaza. As U.S. citizens, the Corries could not rely on 28 U.S.C. Section 1350. Her family asserted that the federal court had Section 1331 jurisdiction over the international law claims for extrajudicial killing, war crimes, and cruel, inhuman, and degrading treatment. The district court did not address Section 1331 jurisdiction, dismissing the case on a finding that plaintiffs’ allegations did not rise to the level of customary international law violations required by Sosa. 25 See cases cited supra notes 8-10. 26 See Xuncax v. Gramajo, 886 F. Supp. 162, 193-94 (D. Mass. 1995); Handel v. Artukovic, 601 F. Supp. 1421, 1426-28 (C.D. Cal. 1985); Tel-Oren v. Libyan Arab

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Libyan Arab Republic that “[i]nternational law typically does not authorize individuals to vindicate rights by bringing actions in either international or municipal tribunals.”27 These holdings, however, do not address the approach left open by Sosa—the possibility that federal courts might use their common law power to recognize a cause of action for certain violations of international law. B. THE ANTI-TERRORISM ACT (ATA) The Anti-Terrorism Act of 1992 (ATA)28 provides jurisdiction29 and a cause of action for claims by U.S. nationals injured by an act of international terrorism: Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.30 Note that the statute authorizes recovery of treble damages and attorney fees and permits suit by the injured party or by his or her estate, survivors, or heirs.31 International terrorism is defined in the statute to include activities that: (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended— (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or Republic, 726 F.2d 774, 779 n.4 (Edwards, J., concurring), 811 (Bork, J., concurring) (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985). 27 726 F.2d at 817 (D.C. Cir. 1984) (Bork, J., concurring). Judge Edwards in Tel-Oren argued that the “arising under” language in Section 1331 requires a cause of action or a right to sue, and like Judge Bork, he refused to find or imply one from international law. Id. at 779 n.4 (Edwards, J., concurring). 28 18 U.S.C. §§ 2331-2339C. 29 18 U.S.C. § 2334. 30 18 U.S.C. § 2333(a). 31 Id.

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(iii) to affect the conduct of a government by mass destruction, assassination, or kidnaping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum[.]32 In short, the statute permits civil claims by U.S. nationals injured by criminal acts either outside the United States or “transcend[ing] national boundaries,” if the acts “appear to be intended” to intimidate or coerce civilians or a government. The statute excludes acts of war and suits against the United States or foreign states and their employees acting within their official capacity or under color of legal authority.33 Claims are subject to a four-year statute of limitations.34 Opinions in about a dozen ATA cases were available online as of late 2006. Many were filed against Palestinian organizations and individuals.35 For example, in Biton v. The Palestinian Interim Self-Government Authority, victims of a bombing in an Israeli settlement sued the Palestinian Interim Self-Government Authority and the Palestine Liberation Organization.36 The court rejected defendants claim to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA) (because Palestine is not recognized as a foreign state under the FSIA) and rejected a political question defense. Most of 32

18 U.S.C. § 2331(1). 18 U.S.C. § 2337. 34 18 U.S.C. § 2335(a). The statute is tolled during “the absence of the defendant from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff.” 18 U.S.C. § 2335(b). 35 See, e.g., the following cases alleging that Palestinian organizations or individual defendants were responsible for the deaths of U.S. citizens: Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005); Gilmore v. The Palestinian Interim Self-Gov’t Auth., 422 F. Supp. 2d 96 (D.D.C. 2006); Biton v. The Palestinian Interim Self-Gov’t Auth., 412 F. Supp. 2d 1 (D.D.C. 2005); Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424 (S.D.N.Y. 2004); Rubin v. Hamas-Islamic Resistance Movement, Civ. No. 02-0975, 2004 WL 2216489 (D.D.C. Sept. 27, 2004). Most of the claims against individual defendants have been dismissed for lack of personal jurisdiction. See, e.g., Gilmore v. The Palestinian Interim Self-Gov’t Auth., 422 F. Supp. 2d 96, 102-04 (D.D.C. 2006). 36 412 F. Supp. 2d 1 (D.D.C. 2005). 33

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the opinion dealt with whether or not the bombing was an act of war. The court concluded it was not and allowed the action to proceed.37 Another group of cases targeted banks and other organizations accused of funding Palestinian groups. In Boim v. Quranic Literacy Institute, for instance, the parents of a U.S. citizen killed in Israel by Hamas sued various organizations for funding Hamas.38 The court of appeals held that funding a terrorist organization without knowledge that the funds would be used for a criminal act did not constitute an act of terrorism under 18 U.S.C. Section 2331. The U.S. government submitted an amicus brief in the case arguing that the ATA permits aiding and abetting liability. The court agreed, holding that if such funding met the definition of aiding and abetting an act of terrorism, banks could be held liable under 18 U.S.C. Sections 2331 and 2333.39 In Linde v. Arab Bank, U.S. citizen plaintiffs alleged that the bank’s activities in administering death benefits to families of Palestinians who undertook suicide bombings made the bank liable under the ATA.40 The district court distinguished Boim and found that the bank could be held liable under aiding and abetting and civil conspiracy theories based on allegations that the bank knew that the groups for which it provided services were engaged in terrorist activities.41 ATA claims arising out of the September 11, 2001, attacks are also pending. In a case filed against a long list of individuals and organizations, plaintiffs claimed that the defendants provided material support to Al Qaeda.42 The court dismissed claims against several banks, holding that the ATA requires 37

Id. at 6-11. In a suit against an alleged Al Qaeda member by an army soldier wounded in Afghanistan, the court granted a default judgment, holding that the claim did not fall into the “act of war” exception to ATA liability because Al Qaeda is a terrorist group, not a military force. Morris v. Khadr, 415 F. Supp. 2d 1323, 1333-34 (D. Utah 2006). 38 291 F.3d 1000 (7th Cir. 2002). 39 Id. at 1021. 40 384 F. Supp. 2d 571 (E.D.N.Y. 2005). 41 Id. at 583-88. 42 In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005). The district court found that several defendants were entitled to the protections of the Foreign Sovereign Immunities Act, either because they were organizations owned by the Saudi government or individuals acting within their official capacity. Id. at 792-804. See discussion in Chapters 5 and 14. Others were dismissed for lack of personal jurisdiction over various defendants.

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knowledge that a defendant’s actions had contributed to the alleged terrorist acts: “As the Court has stated before, there can be no [ATA] bank liability for injuries caused by money routinely passing through the bank. Saudi American Bank is not alleged to have known that anything relating to terrorism was occurring through the services it provided.”43 The court refused to dismiss claims against an individual alleged to have close ties to Osama bin Laden and to be the chair of two organizations involved in funding bin Laden’s network.44 C. THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) The Racketeer Influenced and Corrupt Organizations Act (RICO)45 provides additional grounds for jurisdiction over a human rights claim if two basic criteria are met: (1) the plaintiffs have suffered an “injury to business or property”; and (2) there is sufficient connection to the United States to justify extraterritorial application of the statute. Each is described more fully below. Pleading a RICO claim provides several advantages. First, claims for injury to business or property may be cognizable under RICO although such claims may not be actionable under the ATS and the TVPA.46 Second, treble damages and attorneys fees are available. Third, evidence of other bad acts by the RICO enterprise is admissible because it is necessary to establish a pattern of racketeering behavior. Finally, RICO confers nationwide jurisdiction and enables plaintiffs to sue in any district where the defendant “resides, is found, has an agent, or transacts his affairs.”47 On the other hand, RICO litigation is very complicated, starting with challenges to the adequacy of the pleadings. RICO claims should not be undertaken without teaming up with a practitioner already familiar with RICO 43

Id. at 834. Discussing allegations against another bank, the court stated: The . . . complaints do not include any facts to support the inference that Arab Bank knew or had to know that it was providing material support to terrorists by providing financial services to the charity Defendants or by processing wire transfers in Spain. . . . Providing routine banking services, without having knowledge of the terrorist activities, cannot subject Arab Bank to liability. Id. at 835. 44 Id. at 823-25, 837. 45 18 U.S.C. § 1961 et seq. 46 See Chapter 7, Section F.2. As discussed in the prior section, the Anti-Terrorism Act (ATA) authorizes claims for injury to property. 47 18 U.S.C. § 1965, particularly subsections (b)-(d).

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or assigning a member of the team to take primary responsibility for guiding the case through the maze of RICO law.48 RICO claims were litigated successfully in Republic of the Philippines v. Marcos, a case that paralleled the human rights claims against Ferdinand Marcos and his estate.49 Although no RICO claims have resulted in judgments for international human rights plaintiffs, such claims have survived motions to dismiss in several cases.50 1.

The Elements of a RICO Claim

The RICO statute prohibits conducting or conspiring to conduct the affairs of an enterprise engaged in (or whose activities affect) interstate commerce “through a pattern of racketeering activity”51 The meaning of each of these terms has been heavily litigated. Most relevant to human rights litigation, the predicate acts that may form a “pattern of racketeering activity” include: (1) crimes such as murder, kidnaping, arson, and robbery that are “chargeable under State law and punishable by imprisonment for more than one year”52 ; and (2) a long list of federal crimes including activities relating to peonage, slavery, and trafficking in persons,53 as well as crimes relating to interference with 48 See generally PAUL A. BATISTA, CIVIL RICO PRACTICE MANUAL (2d ed. 2004); ARTHUR F. MATTHEWS ET AL., CIVIL RICO LITIGATION 9-9 to 9-19 (2d ed. 1992); JED S. RAKOFF & HOWARD W. GOLDSTEIN, RICO: CIVIL AND CRIMINAL, LAW AND STRATEGY (2005). CCH also publishes a specialized reporter, RICO Business Dispute Guidelines. Because RICO law changes so rapidly, counsel must ensure that the case law relied upon is still good law. 49 862 F.2d 1355, 1358-60 (9th Cir. 1988) (en banc). 50 See, e.g., Bowoto v. Chevron Texaco Corp, 312 F. Supp. 2d 1229, 1248-49 (C.D. Cal. 2004); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at * 20-27 (S.D.N.Y. Feb. 28, 2002). 51 18 U.S.C. § 1962(b). 18 U.S.C. Section 1962(c) makes it unlawful “for any person employed by or associated with any enterprise engaged in . . . interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The statute also prohibits (a) the use of income “derived . . . from a pattern of racketeering activity” to acquire an interest in, establish, or operate such an enterprise, and (b) the acquisition of “any interest in or control of” such an enterprise “through a pattern or racketeering activity.” 18 U.S.C. § 1962(a), (b). 52 18 U.S.C. § 1961(1). 53 18 U.S.C. §§ 1581-1592.

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commerce, robbery, or extortion.54 Human rights claims brought under RICO have survived motions to dismiss based on the theory that many of the predicate acts enumerated in 18 U.S.C. Section 1961 have elements similar to human rights violations. For example, allegations of summary execution might also be plead as murder, while crimes against humanity might, in certain circumstances, constitute arson, robbery or extortion.55 Despite the variety of criminal conduct that may serve as a predicate act, only injuries to business or property are cognizable under RICO. According to the Supreme Court, a “pattern of racketeering activity” requires at least two “related” and “continuous”56 acts of racketeering activity within ten years of each other.57 Plaintiffs must allege the existence of an enterprise, defined as “a group of persons associated together for a common purpose of engaging in a course of conduct,”58 whether or not the enterprise constitutes a legal entity.59 A RICO enterprise “at a minimum . . . must exhibit ‘some sort of structure . . . for the making of decisions, whether it be hierarchical or consensual.’”60 The description of the enterprise required in a RICO pleading differs from jurisdiction to jurisdiction.61 Each of the named participants must be an “individual or entity capable of holding a legal or 54

Id. Defendants have argued unsuccessfully that plaintiffs cannot establish the requisite predicate acts where the crime occurred outside the state. See Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at * 24 (S.D.N.Y. Feb. 28, 2002) (“[L]ocation is best categorized as a procedural obstacle to conviction of the sort that plaintiffs are not required to satisfy in order to allege a predicate act under RICO.”). 56 H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239-43 (1989); see 18 U.S.C. § 1961(5) (defining a “pattern of racketeering activity”). 57 18 U.S.C. § 1961(5). A civil action under RICO is subject to a four-year statute of limitations, starting from the date of the last act that injured the plaintiff. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 186-89 (1997). 58 Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 15 (2d Cir. 1989). 59 18 U.S.C. § 1961(4). 60 Chang v. Chen, 80 F.3d 1293, 1299 (9th Cir. 1996) (quoting United States v. Riccobene, 709 F.2d 214, 222 (3d Cir. 1983)). 61 See discussion of different standards in Chang v. Chen, 80 F.3d 1293, 1298-99 (9th Cir. 1996); see also Walker v. Jackson Pub. Schs., 42 Fed. Appx. 735, 737 (6th Cir. 2002) (“Generally, a plaintiff must submit evidence of some sort of ‘chain of command’ or other evidence of a hierarchy, even a highly limited one.” (citation omitted)). 55

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beneficial interest in property.”62 A governmental entity may also be a participant in a RICO enterprise, although it is entitled to sovereign immunity and may be protected from liability.63 RICO also prohibits conspiracies, which require an agreement both to conduct or participate in the affairs of an enterprise and to commit at least two predicate acts.64 The defendant need not agree personally to commit the crime,65 and need not know the other members of the enterprise, but must know of its existence and scope.66 However, “a defendant must . . . have been aware of the essential nature and scope of the enterprise and [must have] intended to participate in it.”67 2.

The Parties and Pleading Requirements

Section 1964 provides for a private right of action to enforce the statute. To have standing, plaintiffs must show an injury to their business (including employment) or property (including intangible property). The weight of authority precludes RICO claims for economic losses that are the result of personal injury.68 A plaintiff must show an injury that was caused by the 62

18 U.S.C. § 1961(3). Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at * 23 (S.D.N.Y. Feb. 28, 2002) (citing United States v. Angelilli, 660 F.2d 23, 30-33 (2d Cir. 1981)), which held that the definition of “enterprise” under Section 1961(4) encompasses governmental entities). 64 Salinas v. United States, 522 U.S. 52, 65 (1997) (“[I]t suffices that [the conspirator] adopt the goal of furthering or facilitating the criminal endeavor.”). 65 Id. at 61-62. 66 United States v. Schell, 775 F.2d 559, 568-69 (4th Cir. 1985); United States v. Diecidue, 603 F.2d 535, 556 (5th Cir. 1979). 67 United States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004) (citation and internal quotation marks omitted). 68 See, e.g., Evans v. City of Chi., 434 F.3d 916, 925-26 (7th Cir. 2006). Human rights cases that include claims under RICO frequently fail because the plaintiff pleads economic harm that flows from personal injury. See, e.g., Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 101 (D.D.C. 2003). Other human rights cases fail to allege any connection between the conduct of the defendants and the injury to the plaintiffs’ business or property. See, e.g., Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005). 63

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conduct constituting the violation of RICO69 —that is, one or more RICO predicate acts70 must be the proximate cause of the injury.71 To establish liability under 28 U.S.C. Section 1962(c) there must be two distinct entities: (1) a “person” (a defendant); and (2) an “enterprise” that is not simply the same “person” referred to by a different name.72 Section 1962(c) requires that a defendant be a participant in the operation or management of the enterprise.73 In addition, a plaintiff must allege that the defendant had “some part” in directing the enterprise’s affairs.74 Although there is no formal heightened pleading requirement for a RICO claim,75 many federal district courts have issued standing orders requiring plaintiffs to complete RICO statements that provide certain details concerning their RICO claim.76 The RICO statements are for the most part variations of a single form. Even in jurisdictions where no RICO statement is required,77 it is 69

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). Beck v. Prupis, 529 U.S. 494, 505 (2000). 71 Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at * 27 (S.D.N.Y. Feb. 28, 2002). A predicate act “proximately causes a plaintiff’s injury if [it is a] substantial factor[ ] in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Id. (alteration in original; citation omitted). 72 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001). 73 Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). 74 In re Terrorist Attacks on September 11, 2001, 392 F. Supp. 2d 539, 565 (S.D.N.Y. 2005) (quoting Redtail Leasing, Inc. v. Bellezza, Civ. No. 95-5191, 1997 WL 603496, at *5 (S.D.N.Y. Sept. 30, 1997)). 75 RICO pleadings are governed by the notice pleading requirements of the Federal Rules of Procedure, which require particularity in pleading in only two specific instances set forth in Rule 9(b): fraud and mistake. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 828 (9th Cir. 2003); Glenn v. First Nat’l Bank, 868 F.2d 368, 371 (10th Cir. 1989); Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988), cert. denied, 493 U.S. 858 (1989). Reynolds v. East Dyer Development Co., 882 F.2d 1249, 1251 (7th Cir. 1989), alleged mail fraud and was dismissed for failure to comply with Rule 9. 76 DAVID B. SMITH & TERRANCE G. REED, CIVIL RICO APPENDIX, 9A, 9-100.17 (2003) (citing 15 different district courts, in the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits, as among those that issue RICO Standing Orders). 77 Most district courts either adopt verbatim or use a version of the standing order issued by Judge Alvin Krenzler in Lyman Steel Co. v. Shearson Lehman Bros., Civ. No. 86-355, 1986 U.S. Dist. LEXIS 29346 (N.D. Ohio Feb. 13, 1986). 70

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useful to review the requirements as a checklist for evaluating the completeness of a RICO pleading.78 3.

Extraterritorial Jurisdiction and Jurisdictional Discovery

In the context of human rights litigation, an initial question is whether RICO confers subject matter jurisdiction over foreign entities or acts and conspiracies occurring outside the United States. The statute itself is silent on its extraterritorial reach.79 When a case contains a significant foreign aspect, a court must determine whether Congress intended the law to apply in the circumstances of the case.80 The courts that have considered this question in RICO cases have borrowed from securities and anti-trust law and have applied both the “conduct” and “effects” tests.81 78 Despite the widespread use of these orders, only four circuits have considered whether they are consistent with notice pleading. Compare Commercial Cleaning Servs. v. Colin Serv. Sys., Inc., 271 F.3d 374, 385-87 (2d Cir. 2001) (finding that the statements required more than that required by the Federal Rules of Civil Procedure), and Wagh v. Metris Direct, Inc., 363 F.3d 821, 828 (9th Cir. 2003) (same), with Figueroa Ruiz v. Alegria, 896 F.2d 645, 646 (1st Cir. 1990) (upholding use of statements), Old Time Enters. v. International Coffee Corp., 862 F.2d 1213, 1217 (5th Cir. 1989) (same), and Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (same). The different results may be explained by the fact that the First and Fifth Circuit cases alleged predicate offenses of mail or wire fraud. 79 Generally, courts have concluded that RICO does not include international schemes largely unrelated to the United States. In Brink’s Mat Ltd. v. Diamond, the dissent, addressing the limitations of RICO, stated: It was not congressional intent, nor would it be proper were that the case, to deter the conduct of parties unconnected to the United States, or to provide windfall civil judgments to citizens of any country who sue citizens of another country for fraudulent transactions which only casually touch upon the United States. 906 F.2d 1519, 1524 (11th Cir. 1990) (Aldisert, Sen. Cir. J., dissenting). 80 N. S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996). 81 Id. at 1051-52; Butte Mining PLC v. Smith, 76 F.3d 287, 291-92 (9th Cir. 1996). The precise test appropriate to RICO is not clear because, as the Second Circuit noted, the tests used thus far are “premised upon congressional intent in enacting the Securities Exchange Act and the antitrust statutes, not the intention of Congress concerning RICO.” N. S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051, 1052 (2d Cir. 1996). “[T]he ultimate inquiry is . . . whether ‘Congress would have wished the precious resources of United States courts’ ” to be concerned with the transactions at hand. Id. (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir. 1975)).

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The “conduct” test considers whether the defendant’s conduct in the United States was significant with respect to the alleged violation, rather than merely preparatory, and whether it materially furthered the unlawful scheme.82 However, the domestic conduct does not have to be the direct cause of the predicate act.83 Under the effects test, jurisdiction exists if the conduct outside the United States was intended to have and actually had an effect in United States.84 This test is met when the domestic effect is a “direct and foreseeable result of the conduct outside of the . . . United States.”85 Another formulation of the “effects” test, based on securities law, recognizes the “ ‘extraterritorial reach [of the statute] whenever a predominantly foreign transaction has substantial effects within the United States.’”86 Often at the pleading stage it is unclear whether there is personal jurisdiction and/or a basis for the extraterritorial application of RICO. It is within a district court’s discretion to determine whether a plaintiff is entitled to conduct jurisdictional discovery and, if so, to devise the relevant procedures.87 If a plaintiff has identified a genuine issue of jurisdictional fact, jurisdictional discovery may be appropriate even in the absence of a prima facie showing as to the existence of jurisdiction.88 82

Butte Mining PLC v. Smith, 76 F.3d 287, 291-92 (9th Cir. 1996). Robinson v. TCI/US W. Communications, Inc., 117 F.3d 900, 906 (5th Cir. 1997). 84 N. S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1052 (2d Cir. 1996) (referring to effects that the state “reprehends”). 85 Consolidated Gold Fields PLC v. Menarche, S.A., 871 F.2d 252, 261 (2d Cir. 1989). 86 N. S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996) (quoting Consolidated Gold Fields PLC v. Menarche, S.A., 871 F.2d 252, 261-62 (2d Cir. 1989)); see also Doe v. Unocal, 110 F. Supp. 2d 1294, 1311 (C.D. Cal. 2000) (applying securities-based effects test). 87 See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (holding that a plaintiff should be provided with an “ample opportunity to secure and present evidence relevant to the existence of jurisdiction” through jurisdictional discovery (quoting Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). 88 See In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207-08 (2d Cir. 2003) (per curiam). But see Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 186 (2d Cir. 1998) (holding that plaintiffs were not entitled to jurisdictional discovery because they failed to make a prima facie showing of personal jurisdiction). 83

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D. STATE OR FOREIGN LAW CLAIMS The same conduct that constitutes a violation of international human rights norms usually also violates the law of the place where it occurred and the law of the forum state, the place where the claim is litigated. U.S. courts, both federal and state, generally adjudicate claims that arise out of events in a foreign state under the doctrine of transitory torts. According to this doctrine, civil actions for personal injury torts are transitory in that the tortfeasor’s wrongful acts create an obligation which follows him across national boundaries. If personal jurisdiction is obtained over the defendant, if his acts violate the law of the situs state, and if the policies of the forum state are consistent with the foreign law, then the exercise of jurisdiction is proper.89 Thus, a state court would have subject matter jurisdiction over a complaint for wrongful death, assault and battery, false imprisonment, intentional infliction of emotional distress, and similar torts even if the torts had been committed in another country.90 After listing some of the more common parallel state or foreign law torts, this section discusses the possibility of federal subject matter jurisdiction over such claims, then addresses some of the advantages and disadvantages of pleading and litigating domestic law torts. 89 James M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 63 & nn.52-53 (1981) (citing Slater v. Mexican National Ry., 194 U.S. 120 (1904); McKenna v. Fisk, 42 U.S. 241, 248-49 (1843); Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 885 (2d Cir. 1980)). 90 Personal jurisdiction over the defendant would, of course, be necessary.

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1.

121

Pleading Parallel Domestic Law Torts

International Human Rights Violation

Corresponding Municipal Causes of Action

Extrajudicial or Summary Execution

Wrongful Death

Torture

Assault and Battery Intentional Infliction of Emotional Harm

Arbitrary Detention

False Imprisonment

Cruel, Inhuman, and Degrading Treatment

Assault and Battery Intentional Infliction of Emotional Harm Negligent Infliction of Emotional Distress Loss of Consortium

Disappearance

Wrongful Death False Imprisonment Intentional Infliction of Emotional Harm Loss of Consortium

Genocide

Wrongful Death Assault and Battery Intentional Infliction of Emotional Harm

2.

Litigating Domestic Law Claims in State or Federal Courts

In the absence of federal subject matter jurisdiction, claims based on state or foreign law can be litigated in state courts. To date, state litigation has generally been a course of last resort, when federal claims are dismissed. In Doe v. Unocal Oil Corp., for example, the plaintiffs refiled their claims in California state court after the federal district court granted a motion for summary judgment.91 However, litigation in state court may be a reasonable option in some cases, if litigants and their lawyers are more familiar with state procedure or predict a more sympathetic judge or jury in the state system. If the claim triggers federal subject matter jurisdiction, however, it can be filed in federal court. Moreover, defendants may seek to remove it to federal court over the objections of the plaintiffs. 91

Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000); Roe v. Unocal, BC 237679 (Cal. Super. Ct. filed Oct. 4, 2000), available at www.ccr-ny.org/humanrightbook.

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The federal courts have diversity jurisdiction over causes of action involving an alien and a U.S. citizen.92 Note that the diversity statute requires complete diversity: A suit by alien and U.S. citizen plaintiffs against an alien would not trigger diversity jurisdiction.93 If the same claims were filed in two separate lawsuits, however, the U.S. citizen’s case would trigger such jurisdiction. In Linder v. Calero Portocarrero,94 the Eleventh Circuit upheld diversity jurisdiction over a claim against Nicaraguan defendants who had allegedly murdered and tortured Benjamin Linder, a U.S. citizen, during the 1980s war in Nicaragua.95 The cause of action was a common law domestic tort, although customary international law provided the standard of care in the tort action. If a federal court has original jurisdiction over a claim in a lawsuit, it also has jurisdiction over non-federal claims that “form part of the same case or 92

28 U.S.C. Section 1332 provides in part that: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties. A suit by one alien against another does not invoke federal diversity jurisdiction. 93 See Strawbridge v. Curtiss, 7 U.S. (Cranch) 267 (1806). 94 963 F.2d 332 (11th Cir. 1992). 95 Id. at 333. In Linder, the U.S. citizen plaintiffs could not sue under ATS because of its restriction to alien plaintiffs; the TVPA, which authorized such suits by citizens, had not yet been enacted. Plaintiffs asserted both federal question and diversity jurisdiction. The Eleventh Circuit declined to rule on whether the case presented a federal question but permitted the case to go forward as a diversity suit for wrongful death in which the tort standard was violation of the customary laws of war. See id. at 336-37. In the consolidated Marcos cases, the claim of U.S. citizen Jaime Piopongco was filed separately to avoid destroying diversity jurisdiction. He obtained a judgment, in part, on his state law claims. See Hilao v. Estate of Marcos, 103 F.3d 789, 793-94 (9th Cir. 1996) (finding that the district court had erred in failing to instruct the jury on Piopongco’s claims for the “intentional destruction of business property” but determining that the district court’s refusal to instruct the jury with respect to Piopongco’s “assault and battery” and “intentional infliction of emotional distress” claims was “of no consequence” as these claims were addressed by the court’s instructions for torture and prolonged arbitrary detention).

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controversy.”96 If the federal court has subject matter jurisdiction over a claim, supplemental jurisdiction should therefore apply to parallel claims based on state or foreign law. Supplemental jurisdiction should also grant a federal court jurisdiction over claims by additional parties. Application of the standard varies considerably, however, so that it may be difficult to convince the court to assert jurisdiction over claims by parties who do not have independent grounds for federal jurisdiction. In Xuncax, for example, the court exercised supplemental jurisdiction over the municipal law claims of each plaintiff for whom it had found federal court jurisdiction.97 However, the judge declined to find supplemental jurisdiction over the claims of a plaintiff for whom he had not found federal jurisdiction. He agreed that “all suffered their injuries pursuant to [Gramajo’s] brutal policy of extermination and suppression,” but he ruled that it would “unduly expand[] the United Mine Workers v. Gibbs concept of ‘common nucleus of operative fact’ ” to assert supplemental jurisdiction over the claims of an additional plaintiff.98 Supplemental jurisdiction principles also provide that if one of a plaintiff’s claims raises even a colorable claim of federal court jurisdiction, the federal court arguably has supplemental jurisdiction over all remaining municipal or state law claims, even if that federal claim is subsequently dismissed. As stated in Fila´rtiga: Once federal jurisdiction is established by a colorable claim under federal law at a preliminary stage of the proceeding, subsequent dismissal of that claim (here, the claim under the general international proscription of torture) does not deprive the court of jurisdiction previously established.99 Again, this is a discretionary standard, and the court may well choose to dismiss state law claims if the federal claims have been dismissed.100 3.

The Pros and Cons of Pleading Domestic Law Claims

Pleading parallel state or foreign law claims, as well as federal international law violations, provides some protection in case a court finds that the federal 96

28 U.S.C. § 1367(a). Xuncax v. Gramajo, 886 F. Supp. 162, 194-95 (D. Mass. 1995). 98 Id. at 195 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). 99 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 889 n.25 (2d Cir. 1980). 100 See 28 U.S.C. § 1367(c) (setting forth grounds for discretionary decision to refuse to assert supplemental jurisdiction). 97

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statute does not apply. In Doe v. Unocal Oil Corp., the federal court granted a summary judgment dismissal of the federal claims and declined to exercise supplemental jurisdiction over the parallel state claims.101 Plaintiffs then refiled the state law claims in California state court.102 Those claims were pending and ready to proceed to trial at the time that the case was settled. In Doe v. Exxon Mobile Corp., plaintiffs alleged that Exxon paid and directed members of the Indonesian military to commit acts of torture, “sexual violence,” and murder in the course of protecting natural gas facilities in Aceh, Indonesia.103 The court dismissed federal human rights claims for genocide and crimes against humanity, finding that adjudication would “require[] the court to evaluate the policy or practice of the foreign state,” which “would be an impermissible intrusion in Indonesia’s internal affairs.”104 However, the court refused to dismiss plaintiffs’ common law state tort claims for wrongful death, assault and battery, and false imprisonment, rejecting the defendant’s argument that litigation of those claims would intrude into Indonesian internal affairs.105 In Ibrahim v. Titan Corp., the plaintiffs brought ATS claims for torture against private contractors in Iraq.106 The court dismissed the ATS claims, holding that the conduct of private parties described by plaintiffs’ allegations was not actionable under the ATS.107 However, the court permitted the several state law claims to proceed, including assault and battery, wrongful death, intentional infliction of emotional distress, and negligence.108 In an area of law that is rapidly changing, there is an ever-present risk that an intervening judicial decision will change the interpretation of the statutory framework. In addition, legislative repeal or amendment is always a possibility. These risks highlight the value of pleading alternative domestic law claims. Even if federal claims are litigated, however, state law claims may provide significant benefits. State law may permit litigation of claims or categories of 101

Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1312 (C.D. Cal. 2000). Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000); Roe v. Unocal, BC 237679 (Cal. Super. Ct. filed Oct. 4, 2000), available at www.ccr-ny.org/humanrightbook. 103 393 F. Supp. 2d 20, 22 (D.D.C. 2005). 104 Id. at 25. 105 Id. at 28-29. Plaintiffs were advised to “tread cautiously,” and conduct discovery “in such a manner so as to avoid intrusion into Indonesian sovereignty.” Id. at 29. 106 391 F. Supp. 2d 10, 14-15 (D.D.C. 2006). 107 Id. at 15. 108 Id. at 15-19. 102

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damages, such as property loss, that are not actionable under one or more of the federal statutes. The domestic law definition of the tort may be broader than the international law norm. Extrajudicial execution, for example, requires state action, and may, under some definitions, require an intentional act. A claim for negligence by a private actor, however, would satisfy most state or foreign law requirements for wrongful death. In addition, state law may permit claims that simply do not exist under federal law. For example, several cases filed in California have alleged violations of California’s Unfair Competition Law (UCL or Section 17200),109 which prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” In Bureerong v. Uvawas, a case involving dozens of female Thai immigrants who were subjected to involuntary servitude at the hands of their California employers, a California district court ruled that the plaintiffs had sufficiently alleged unfair business practices, including violations of state law.110 Similarly, in Doe v. Wal-Mart Stores, Inc., plaintiffs brought suit under the UCL against Wal-Mart, alleging that the company was profiting from the cheap labor garnered by sweatshop conditions in violation of international law, while falsely portraying itself to U.S. customers as a socially responsible employer.111 Section 17200 claims of unfair business practices based on complicity in human rights violations were also made in the state court litigation in Doe v. 109

CAL. BUS. & PROF. CODE § 17200. 922 F. Supp. 1450, 1458, 1477 (C.D. Cal. 1996). Section 17200 has been found to apply to a corporation’s false claims about its good human rights record. See Kasky v. Nike., Inc., 45 P.3d 243, 247-48 (Cal. 2002), cert. denied as improvidently granted, 539 U.S. 654 (2003). In September 2003, it was reported that Nike settled this case for a payment of $1.5 million. Adam Liptak, Nike Move Ends Case over Firms’ Free Speech, N.Y. TIMES, Sept. 13, 2003, at A8, available at 2003 WLNR 5666630. A November 2004 proposition in California and several court decisions have imposed stricter standing requirements on plaintiffs bringing suit under the UCL. The proposition eliminated “private attorney general” lawsuits under the UCL brought on behalf of the general public by persons who had suffered no personal injury. In late 2006, the California Supreme Court accepted review of cases that will provide further guidance on the scope of the revised statute. See Tobacco II Cases, 146 P.3d 1250 (2006) (petition for review granted). 111 The claims were dismissed in March 2007, with the court holding that plaintiffs did not allege an injury cognizable under the revised UCL. Doe v. Wal-Mart Stores, Inc., Civ. No. 05-07307, at 10-11 (C.D. Cal. Mar. 30, 2007) (appeal pending), available at www.ccr-ny.org/humanrightbook. 110

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Unocal Corp.112 and Bowoto v. Chevron Texaco Corp.113 In both cases, plaintiffs alleged that the petroleum company defendants gained an unfair competitive advantage by utilizing overseas practices fraught with human rights abuses and that these defendants made false and/or misleading public statements in the United States regarding their role in these abuses. Although claims based on state or foreign law may offer some advantages, such claims also pose difficult hurdles. The statute of limitations, for example, may be much shorter. As discussed in Chapter 15, Section A, the statute of limitations for most international human rights claims is ten years, far longer than for most domestic personal injury claims. State law requirements for standing to bring wrongful death or survival actions may create another complication. The plaintiffs may have sufficient connection to the harms alleged to meet the federal standing requirements, but not meet state standing rules.114 In addition, complex choice of law determinations may lead the courts to determine key issues according to the law of the place where the abuses took place. Courts addressing state law or foreign law claims would engage in the forum’s choice of law analysis. In a forum applying a “governmental interest test,” a court may look to the law where the defendant is located, while a traditional choice of law analysis would tend to favor the application of foreign law—the lex loci delecti—to such claims.115 If the foreign country has broad 112 Complaint at ¶ 220-222, Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000), available at www.ccr-ny.org/humanrightbook. In Unocal, plaintiffs filed in state court after the federal district court granted a motion for summary judgment, dismissing plaintiffs’ federal claims, and declined to exercise supplemental jurisdiction over plaintiffs’ state law claims. See Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1311-12 (C.D. Cal. 2000); the federal court summary judgment dismissal was reversed on appeal: for a full history of the complicated Unocal federal litigation, see Chapter 1, note 66. 113 Complaint for Injunctive and Declaratory Relief, Restitution, and Disgorgement of Profits at ¶¶ 128-142, Bowoto v. Chevron Texaco Corp., No. 03-417580 (Cal. Super. Ct. filed Feb. 20, 2003), available at www.ccr-ny.org/humanrightbook. Several motions for summary judgment on the Bowoto state claims were pending as of this writing. 114 See Chapter 9. 115 See, e.g., Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 501-03 (S.D.N.Y. 2005) (holding that Nigerian law applies to tort claims arising in Nigeria and rejecting application of Connecticut law). However, in the state court proceedings in Bowoto v. Chevron Texaco Corp., No. 03-417580, 2006 WL 2455761, at *5, *10 (N.D. Cal. Aug. 22, 2006), the court ruled that California law applied to all claims except those governed by admiralty choice-of-law principles, finding that California had a “relatively strong . . . interest in ensuring that its corporations behave in an appropriate manner,” and finding that Nigeria had no “legitimate interest” in “depriving the plaintiffs of a

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127

immunity doctrines, it may be impossible to litigate civil tort claims against members of the military or government employees. The law of the foreign country may also contain limitations on the scope of the alleged torts or limitations on damages that would not apply to ATS or TVPA claims. Choice of law decisions would be based on the choice of law principles applicable in the state where the lawsuit is pending.116 Thus, counsel would be well advised to consider what law the court is likely to apply to the various claims in the proposed action before filing. mechanism to recover for allegedly brutal attacks.” See also the state court proceedings in Doe v. Unocal, where the court rejected the defendants’ arguments that Burma or Bermuda law should apply and applied California law to plaintiffs’ state law claims. This decision, after an evidentiary hearing, was based to a large degree on the absence of an independent judiciary or legal system in Burma. Ruling on Defendants’ Choice of Law Motions at 9-10, Nos. BC 237980, BC 237679 (Cal. Sup. Ct. July 30, 2003). Both decisions are available at www.ccr-ny.org/humanrightsbook. 116 See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 6, 145.

Part III ACTIONABLE HUMAN RIGHTS VIOLATIONS

Human rights cases in U.S. courts allege violations of a wide range of international law norms. The two chapters in this part discuss the substantive definitions of the violations, including both those that are specified by one or more authorizing statutes and those that rely on international law sources. Chapter 7 addresses over two dozen possible claims: historical violations that provide the “paradigm” for current Alien Tort Statute (ATS)1 claims; claims incorporated into one or more of the modern statutes; and additional international law norms that support claims under the ATS. Chapter 8 describes attempts to enforce human rights guarantees found in various treaties, including claims brought under the treaty provision of the ATS and claims brought directly under treaties. 1

28 U.S.C. § 1350.

129

CHAPTER 7 HISTORICAL PARADIGMS, MODERN VIOLATIONS

A. INTRODUCTION Each of the various statutes authorizing human rights litigation includes a distinct definition of which claims are actionable. The specific requirements of the major statutes, discussed at length in prior chapters, are summarized here: •

•

•

The Alien Tort Statute (ATS)1 is the broadest, authorizing claims for torts “in violation of the law of nations.”2 The Supreme Court in Sosa v. Alvarez-Machain3 defined such torts by reference to three international law violations recognized when the ATS was enacted in the late 18th century: piracy, safe conducts, and the rights of ambassadors. The Court concluded that the ATS triggers jurisdiction over human rights violations comparable to these historical paradigms in that they are widely accepted and clearly defined. The Torture Victim Protection Act (TVPA)4 applies only to two violations, torture and extrajudicial killing—the only claims that are actionable under all of the major statutes. The “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA)5 grants jurisdiction over claims of torture, extrajudicial killing, hostage-taking and aircraft sabotage.

1

28 U.S.C. § 1350. The ATS also grants jurisdiction over torts in violation of a treaty, a topic addressed in Chapter 8. 3 542 U.S. 692 (2004). 4 28 U.S.C. § 1350 (note). 5 28 U.S.C. §§ 1330, 1602-11. 2

131

132 International Human Rights Litigation in U.S. Courts

•

The Anti-Terrorism Act6 provides a cause of action for acts of international terrorism, defined as violent criminal acts, outside of the United States or “transcend[ing] national boundaries,” if the acts “appear to be intended” to intimidate or coerce civilians or a government.

Alien Tort Statute (Chapters 1-3)

a tort only in violation of the law of nations or a treaty of the United States

Torture Victim Protection Act (Chapter 4)

torture, extrajudicial killing

“State sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (Chapter 5)

torture, extrajudicial killing, hostage-taking, airplane sabotage

Anti-Terrorism Act (Chapter 6)

acts of international terrorism

Several statutes authorize more narrowly drawn claims7 : •

• •

The Religious Freedom Restoration Act (RFRA) authorizes a claim against the U.S. government for a government action that “substantially burden[s] a person’s exercise of religion,” unless the action “is in furtherance of a compelling governmental interest” and “is the least restrictive means” available.8 The Trafficking Victim Protection Act authorizes a claim by a victim of human trafficking against the perpetrator.9 The Racketeer Influenced and Corrupt Organizations Act (RICO) authorizes civil claims for injury to business or property inflicted by an enterprise that has engaged in interstate commerce through “a pattern of racketeering activity.”10

Finally, human rights violations can be addressed as state law claims, either directly as an international law violation incorporated into state common law or as a parallel municipal tort, such as wrongful death, assault and battery, or false imprisonment.11 6

18 U.S.C. §§ 2331, 2333. See also additional jurisdictional statutes and causes of action discussed in Chapter 6. 8 42 U.S.C. § 2000bb-1. See Section E.9. 9 18 U.S.C. § 1595. See Section E.5. 10 18 U.S.C. §§ 1961, 1962. See Chapter 6.C. 11 See Chapter 6.D. 7

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This chapter discusses both the violations that fall within the broad ATS standard and the enumerated violations listed in several statutes: the TVPA, the “state sponsors of terrorism” exception to the FSIA, RFRA, and the anti-trafficking statute.12 Section B briefly introduces the framework governing ATS claims, which is discussed at greater length in Chapters 1-3. Section C describes the three historical claims referenced by the Supreme Court in Sosa. Section D discusses the four violations explicitly included in one or more of the human rights statutes—torture, extrajudicial execution, hostage-taking, and aircraft sabotage, while Section E addresses additional claims that satisfy the Sosa standard. Finally, Section F discusses claims that have been rejected by the courts to date. B. THE ALIEN TORT STATUTE (ATS) FRAMEWORK The Supreme Court in Sosa v. Alvarez-Machain13 confirmed that the ATS expects the federal courts to use their common law powers to recognize claims for international law violations that are as widely accepted and clearly defined as the historical paradigms recognized by the 18th-century Congress that enacted the statute. The four violations enumerated in the TVPA and the “state sponsors of terrorism” exception to the FSIA, discussed in Section D, clearly meet the modern ATS standard. Several additional violations are so widely accepted under U.S. and international law that they too clearly fall within the ATS. As explained in Section E, some have been applied repeatedly by courts before and after the Sosa decision. Others are basic claims that have yet to be considered by the courts but are likely to meet the Sosa requirements. The ATS standard is discussed in more detail in Chapter 3. But it is important to note here that, to be actionable under the ATS, the entire scope of an international law violation need not be clearly defined, if the conduct alleged falls within a widely accepted, clearly defined core.14 Piracy, one of the “historical paradigms” recognized by the Supreme Court in Sosa, illustrates this concept. In discussing the definition of piracy in United States v. Smith, the Court acknowledged a “diversity of definitions” of piracy, but recognized that robbery on the high seas clearly fell within the meaning of the term: “[W]hatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo 12

Some of these norms require state action, an issue discussed in Chapter 10, Section

B.1. 13 14

542 U.S. 692 (2004). See discussion in Chapter 3, Section B.2.

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furandi, is piracy.”15 Sosa cited the Smith decision and its definition of piracy as a model for the modern application of the ATS jurisdiction. The Court thus endorsed the view that disagreements about the full scope of a violation do not bar recognition of an ATS claim. As explained in the thoughtful opinion in Xuncax v. Gramajo, “It is not necessary that every aspect of what might comprise [an international tort] be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law.”16 Finally, this list is neither exhaustive nor set in stone. Given that the ATS incorporates an evolving standard, claims could either achieve the level of consensus and definition required to trigger jurisdiction or fall beneath that level based on future developments in international human rights law. C. THE HISTORICAL PARADIGMS In Sosa v. Alvarez-Machain, the Supreme Court recognized that “Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.”17 The Court defined the standard for determining which claims fall with the reach of the ATS by reference to the “historical paradigms” recognized at the time the statute was enacted: Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350, we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.18 The Court relied upon Blackstone’s Commentaries for the short list of violations familiar to those who enacted the statute: Blackstone . . . mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. . . . It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences 15 16 17 18

18 U.S. (5 Wheat.) 153, 161 (1820). 886 F. Supp. 162, 187 (D. Mass. 1995). 542 U.S. 692, 720 (2004). Id. at 715.

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in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.19 Most commentators assume that these three violations still trigger ATS jurisdiction. Certainly, the Supreme Court’s holding in Sosa confirms that when the statute was enacted, Congress intended to assert jurisdiction over claims of violations of these norms. Sosa also makes clear, however, that the term “tort . . . in violation of the law of nations” in the ATS has evolved over time and continues to evolve. Arguably, then, these historical torts are merely examples of the violations that triggered jurisdiction in the late 18th century but do not necessarily do so today. At the least, claims of such violations should be subjected to the same scrutiny as modern violations, to determine whether they still meet the requirements of widespread acceptance and clear definition established by the Court in Sosa. 1.

Piracy

As Blackstone’s discussion makes clear, piracy is one of the oldest recognized violations of the law of nations. The Supreme Court’s decision in Sosa confirmed previous lower court analysis concluding that piracy is readily recognized as falling within the jurisdiction of the ATS.20 In the early 19th century, Congress incorporated the law of nations definition of piracy into U.S. criminal law, outlawing the “crime of piracy, as defined by the law of nations.”21 Traditionally limited to “robbery on the high seas,”22 the definition of piracy has evolved to include a wide range of acts of 19

Id. at 725 (citing 4 BLACKSTONE’S COMMENTARIES *68: “[T]he principal offenses against the law of nations, adverted on as such by the municipal laws of England, [were] of three kinds: 1. Violation of safe conducts; 2. Infringement of the rights of embassadors [sic]; and 3. Piracy.”). 20 Twenty years before the Supreme Court decision in Sosa, Judge Bork of the D.C. Circuit conceded that even under his narrow definition of international law, piracy constituted the kind of offense “for which Congress wished to provide tort jurisdiction for suits by aliens” in U.S. federal courts. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813-14 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985). 21 Piracy under the Law of Nations Act, 18 U.S.C. § 1651, based upon Act of Mar. 3, 1819, ch. 76, § 5; see also United States v. Smith, 18 U.S. (5 Wheat) 153 (1820). 22 Justice Story defined piracy under international law as “robbery, or forcible depredations upon the sea.” United States v. Smith, 18 U.S. (5 Wheat) 153, 161 (1820).

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violence against persons or property.23 The 1958 Geneva Convention on the High Seas defines the core acts constituting piracy as: Any illegal acts of violence, detention or any acts of depredation, committed for private ends by the crew or the passengers of a private ship or aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, person or property in a place outside the jurisdiction of any State.24 Universal jurisdiction over piracy is pragmatically justified because the act is committed on the high seas, outside the territorial jurisdiction of any state.25 Although piracy is often discussed in the context of maritime terrorism, violations committed with political motives generally are not considered piracy. The definition quoted above from the Geneva Convention on the High Seas, for example, specifically states that the acts must be done “for private ends.” Although several scholars have argued that the limitation should be read narrowly,26 the comments to the Draft Convention contain broad language excluding attacks committed “for political ends.”27 23

“Piracy is any of the following acts . . . [a]ny act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property.” Joseph W. Bingham, Reporter, Draft Convention and Comment, Codification of International Law: Part VI: Piracy, 26 AM. J. INT’L L. SUPP. 739, 743 (1932) [hereinafter Draft Convention]. The comments to the Draft Convention reason that “in view of the greatly changed conditions of international intercourse today, we should expect that the scope of the modern offense can not be limited satisfactorily by a controlling reference to the old conditions of robbery.” Id. at 787. Relying heavily on the Draft Convention, this approach was adopted by the Geneva Convention on the High Seas. 24

Geneva Convention on the High Seas, art. 15, ¶ 1. The definition also includes: (2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or sub-paragraph 2 of this article. Id., ¶¶ 2, 3. The same definition appears in the 1982 U.N. Convention on the Law of the Sea, art. 101. 25

See WILLIAM E. HALL, A TREATISE ON INTERNATIONAL LAW 267-70 (7th ed. 1917); 1 L. OPPENHEIM, INTERNATIONAL LAW §§ 277, 278 (H. Lauterpacht ed., 8th ed. 1955). 26 See, e.g., Malvina Halberstam, Terrorism on the High Seas: The Achille Lauro Piracy and the I.M.O. Convention on Maritime Safety, 82 AM. J. INT’L L. 269, 272-89

Historical Paradigms, Modern Violations 137

The traditional definition of piracy excludes both governments and individuals acting under the authority of any state. A government official or agent cannot be a pirate.28 However, recent international agreements aimed at curbing attacks at sea have expanded their range to include all persons, including those acting on behalf of a government or other political body.29 These newly developed international norms might themselves be actionable under the ATS. Piracy under international law is not merely of historical interest: Hundreds of pirate attacks are still reported each year, with pirates boarding and hijacking vessels and killing and kidnaping crew members.30 To date, however, no claim for piracy has been brought under the ATS in a U.S. court. 2.

Violations of Safe Conducts

The term “safe conduct” refers to the privilege granted by a country or international convention that protects a person from arrest or harassment while making a particular journey.31 For example, pursuant to bilateral mutual (1988); Dean C. Alexander, Maritime Terrorism and Legal Responses, 19 DENV. J. INT’L L. & POL’Y 529, 538-39 (1991). 27 The comments to the Draft Convention state that the definition of piracy excludes “all cases of wrongful attacks on persons or property for political ends, whether they are made on behalf of states, or of recognized belligerent organizations, or of unrecognized revolutionary bands.” Draft Convention, supra note 23, at 786. 28 2 GREEN H. HACKWORTH, DIGEST OF INTERNATIONAL LAW § 203, at 6681 (1941); Marek St. Korowicz, The Problem of the International Personality of Individuals, 50 AM. J. INT’L L. 533, 545 (1956). “Thus, an act cannot be piratical if it is done under the authority of a state, or even of an insurgent community whose belligerency has been recognized.” JAMES L. BRIERLY, THE LAW OF NATIONS 193-94 (1936). The fact that piracy—perhaps the oldest recognized international law violation—does not require state action makes clear that international law in some circumstances governs the conduct of private persons, as well as governments and persons acting under color of law. See Chapter 10. 29 International Maritime Organization, Convention for the Suppression of Unlawful Acts Against Maritime Navigation, Protocol, pmbl., art. 3 (objective of Convention is to prevent and punish “all unlawful acts against the safety of maritime navigation”). 30 A report of the International Maritime Bureau, a division of the International Chamber of Commerce, reported 174 total attacks through the first nine months of 2006, with the greatest number of attacks in Bangladesh, Nigeria, and Somalia. Global piracy decreasing but hotspots remain deadly, International Chamber of Commerce, Oct. 21, 2006, available at http://www.icc-ccs.org/main/news.php?newsid=76. 31 2 COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 28 (1973); EMMERICH DE VATTEL, THE LAW OF NATIONS 416-17 (Joseph Chitty ed., T. & J.W. Johnson & Co.

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assistance treaties, witnesses traveling to testify in another country are ensured safe conduct while the witness is present in the requesting state. This means that the witness cannot be detained for prior acts and must be given time to depart after the witness’ testimony is no longer needed. Similar protection may be offered to diplomats or other government officials in specific situations. In 1984, for instance, after Libyan diplomats fired upon a demonstration outside their embassy in London, Great Britain offered all Libyan diplomatic staff safe conduct out of the country. To the extent that private persons violate such safe conducts, the recipients of the safe conduct could bring a tort suit pursuant to the ATS.32 3.

The Rights of Ambassadors

The rights and immunities of ambassadors are well established under customary international law, international agreements, and the domestic legislation of many countries.33 For example, Article 29 of the Vienna Convention on Diplomatic Relations states that the person of a diplomatic agent shall be inviolable, that the diplomat shall not be detained or arrested, and that the receiving state shall take all steps to prevent any attack on the diplomat’s personal freedom or dignity. Some scholars suggest that protecting the rights of foreign ambassadors was the primary catalyst for the ATS. The Supreme Court in Sosa referred to the international uproar triggered by the 1784 attack by a Frenchman (Longchamps) on the Consul General of France (Marbois) in Philadelphia, explaining that the 1863). An early example of a safe conduct is that granted by Benjamin Franklin during the Revolutionary War to Captain Cook’s expedition to the Pacific. Cook’s ship was part of the English Navy and the safe conduct instructed U.S. ships and privateers to allow Cook to return to England. Benjamin Franklin, Passport for Captain Cook (Mar. 10, 1979), in BENJAMIN FRANKLIN, WRITINGS 926, 927 (Library of America ed., 1987), cited in Burrus M. Carnahan, Note, Protecting Nuclear Facilities from Military Attack: Prospects after the Gulf War, 86 AM. J. INT’L L. 524, 530 (1992). 32 One scholar has argued that the First Congress enacted the ATS only to address the violation of safe conducts. See generally Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L. REV. 830 (2006). 33 See DAVID B. MICHAELS, INTERNATIONAL PRIVILEGES AND IMMUNITIES 7 (1971); 1 L. OPPENHEIM, INTERNATIONAL LAW 386 (1905); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 464-470 [hereinafter RESTATEMENT (THIRD)]; Vienna Convention on Diplomatic Relations, 18 U.S.C. §§ 1116, 1201(a)(4).

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incident, combined with other events at the time, led to the passage of the ATS.34 One ATS lawsuit, Van Dardel v. Union of Soviet Socialist Republics,35 raised the issue of a violation of diplomatic immunity. The half-brother of Raoul Wallenberg, the Swedish diplomat who saved the lives of 100,000 Hungarian Jews during World War II, sued the Soviet Union for, inter alia, violating Wallenberg’s diplomatic immunity by seizing and imprisoning him. Initially, the district court found that the seizure and imprisonment were violations of international law and that the Soviet Union could be sued. However, subsequent to the decision in Argentine Republic v. Amerada Hess Shipping Corp.,36 the district court vacated its ruling on the grounds that the Soviet Union was immune from suit.37 But there is every reason to believe that such a suit would lie against a private person or a state actor who was not entitled to immunity. More recently, the D.C. Circuit upheld a claim arising out of the 1998 truck bomb attack against the U.S. Embassy in Nairobi, Kenya, which killed more than 200 people and wounded more than 4,000 others.38 In a lawsuit against Al Qaeda and Osama Bin Laden, the court concluded that: The plaintiffs’ contention that bin Laden and al Qaeda attacked the American embassy intending, among other things, to kill American diplomatic personnel inside, would appear to fall well within [the] paradigms [set forth by the Supreme Court in Sosa v. Alvarez Machain]. See Sosa [at 692] (noting that the 18th-century paradigm included “assault against an ambassador”). The modern day ATS thus continues to protect ambassadors and other diplomats. D. THE ENUMERATED VIOLATIONS Four violations are specifically included in one or more of the three key human rights statutes and are also actionable under the ATS: torture and extrajudicial killing (or summary execution), actionable under any of the 34 Sosa v. Alvarez-Machain, 542 U.S. 692, 716-17 (2004) (citing William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 491-94 (1986)). 35 623 F. Supp. 246 (D.D.C. 1985), vacated, 736 F. Supp. 1 (D.D.C. 1990). 36 488 U.S. 429 (1989). 37 Van Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C. 1990). 38 Mwani v. Bin Laden, 417 F. 3d 1 (D.C. Cir. 2005).

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statutes, and hostage-taking and aircraft sabotage, listed in the “state sponsors of terrorism” exception to the FSIA. This section analyzes each of them in detail. 1.

Torture

Torture is one of the most widely recognized violations of international law, prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), as well as by the Universal Declaration of Human Rights (UDHR)39 and the Geneva Conventions.40 Claims of torture are actionable under all of the statutes authorizing human rights litigation. The very first modern human rights case, Fila´rtiga v. Pen˜a-Irala, involved torture.41 That court’s condemnation of torture still provides inspiration to human rights litigation today: While the ultimate scope of [internationally protected human] rights will be a subject for continuing refinement and elaboration, we hold that the right to be free from torture is now among them. . . . Indeed, for purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.42 Fila´rtiga was decided under the Alien Tort Statute (ATS),43 which provides jurisdiction over federal common law claims for widely accepted, clearly defined violations of international law; every court to consider the issue has agreed that torture fits within its reach.44 Two additional jurisdictional statutes, 39

Article 5 of the Universal Declaration states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 40 See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, arts. 3, 12, 50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, arts. 3, 12, 51; Convention Relative to the Treatment of Prisoners of War, arts. 3, 17, 87; Convention Relative to the Protection of Civilian Persons in Time of War, arts. 3, 32, 147. As explained in Chapter 8, claims based on the Geneva Conventions may also be actionable under the treaty prong of the ATS. 41

630 F.2d 876 (2d Cir. 1980).

42

Id. at 885, 890.

43

28 U.S.C. § 1350.

44

See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (reversing lower courts dismissal of claims of mental torture); Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (affirming verdict for torture); AbebeJira v. Negewo, 73 F.3d 844 (11th Cir. 1996) (same); In re Estate of Marcos Human

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the Torture Victim Protection Act (TVPA)45 and the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA),46 specifically provide for torture claims. The Anti-Terrorism Act (ATA) authorizes civil claims for certain violations of federal criminal law, including torture.47 Claims of torture can also be litigated as state law claims for assault and battery.48 The Torture Convention contains the generally accepted international law definition of torture: [A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.49 The key elements of this definition are severe mental or physical pain or suffering; intentionally inflicted for a purpose, such as extracting information, Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) (same). 45 28 U.S.C. § 1350 (note), § 2(a)(1) (“An individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual to torture shall, in a civil action, be liable for damages to that individual.”). See Chapter 4 for discussion of the TVPA. 46 28 U.S.C. § 1605(a)(7) (creating an exception to foreign sovereign immunity for actions “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking”). See Chapter 5 for discussion of this exception to the Foreign Sovereign Immunities Act. 47 18 U.S.C. §§ 2331, 2333 (providing a civil action for U.S. national injured by “an act of international terrorism,” which includes “violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State,” when committed with an intent to intimidate the government or the civilian population). See Chapter 6 for a discussion of the Anti-Terrorism Act. 48 See Chapter 6, Section D. 49 Torture Convention, art. 1.

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punishment, or intimidation, or based on discrimination; by or at the instigation or acquiescence of a person acting in an official capacity; unless the pain or suffering arises from lawful sanctions. The ATS looks to international law for the definition of the actionable violation, and the courts generally apply the Torture Convention definition.50 The TVPA provides its own definition of torture, which is explicitly adopted by the FSIA: TORTURE.—For the purposes of this Act— (1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on a discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; 50

See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (“The most commonly accepted definition [of torture] is that found in the Torture Convention”). Although some courts pre-Sosa looked to the law of the country in which the abuses occurred for a definition of torture, Sosa’s holding that ATS norms derive from international law should overrule this practice. See Tachiona v. Mugabe, 234 F. Supp. 2d 401, 422 (S.D.N.Y. 2002) (court chose to rely in part on the Zimbabwe Constitution in its holding that claimants could recover damages under the ATS). See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12, (2d Cir. 2000), where the Second Circuit observed in footnote that federal courts had not determined what substantive law applies in ATS cases; on remand, the district court chose to apply the Torture Convention. Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, at *19 (S.D.N.Y. Feb. 22, 2002).

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(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.51 The most important difference between this TVPA definition and the Torture Convention definition is the TVPA’s requirement that the victim be “in the offender’s custody or physical control.”52 Thus, a person who receives disturbing phone threats might claim mental suffering that constitutes torture under the Torture Convention but not under the U.S. definition. The TVPA also adds an extensive definition of mental suffering, which, although quite broad, could potentially eliminate other forms of mental torture covered by the Torture Convention.53 51 TVPA, § 3(b). As noted in the House Report accompanying the TVPA, this definition tracks the definition of torture contained in the Torture Convention and the “understandings” attached to it by the U.S. Senate. H.R. REP. NO. 367, 102d Cong., 1st Sess. 4 (1992), reprinted in 1992 U.S.C.C.A.N. 84, referring to Torture Convention, Understandings 1(a), 1(b), 136 CONG. REC. S17491-92 (daily ed. Oct. 27, 1990). The Senate TVPA Report includes a discussion of the meaning of the phrase “lawful sanctions,” explaining that it means lawful under the foreign state’s laws, but excludes sanctions that constitute torture under the Torture Convention or that “unquestionably violate international law.” S. REP. NO. 249, 102d Cong., 1st Sess. 6-7 (1992). 52 53

TVPA, § 3(b)(1).

A 2002 Justice Department memo narrowly defined torture as requiring a specific intent to inflict severe pain and limited to acts that result in death, organ failure, or serious impairment of bodily functions; the memo also defined mental torture as acts that result in permanent emotional trauma. Memorandum for Alberto R. Gonzalez, Counsel to the President, re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/ dojinterrogationmemo20020801.pdf. This definition was widely criticized for seemingly permitting methods of torture otherwise prohibited by the Torture Convention and other international instruments. The memo was later repudiated and replaced with a December 2004 discussion of the various elements of the U.S. statutory definition of torture. Memorandum for James B. Comey, Deputy Attorney General, re: Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004) available at http:// www.usdoj.gov/olc/18usc23402340a2.htm.

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One circuit court has held that the TVPA preempts torture claims under the ATS,54 a conclusion rejected by three later circuit decisions.55 In Aldana, the Eleventh Circuit noted that the differences between the TVPA and the Torture Convention definitions might affect the determination of whether or not torture did indeed occur.56 For the most part, however, the substantive requirements of the ATS, TVPA, and FSIA definitions have been treated as identical in the case law. Severity: An allegation of torture under the ATS, the TVPA, or the FSIA must meet a high threshold of severity, in recognition that torture refers to only the most egregious of acts.57 The factors that the courts have taken into account include: (1) the duration and number of acts; (2) the methods and technique employed in the commission of the acts58 ; and (3) the permanence or lasting The federal statute criminalizing torture committed abroad requires a specific intent to inflict severe physical or mental pain or suffering, 18 U.S.C. Section 2340, a requirement also incorporated into the Military Commissions Act of 2006, 10 U.S.C. Section 948v(b) (11)(A) (defining the crime of torture as commission of an act “specifically intended to inflict severe physical or mental pain or suffering”). None of the civil statutes use the criminal law language of “specific” intent. 54 Enahoro v. Abubakar, 408 F.3d 877, 884-86 (7th Cir. 2005). See discussion in Chapter 4, Section C. 55 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *42 n.28 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (holding that claims for torture and summary execution can still be brought pursuant to the ATS); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-51 (11th Cir. 2005) (same); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1156-58 (11th Cir. 2005) (same). See also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 465 (S.D.N.Y. 2006) (same); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 423 (S.D.N.Y. 2002) (awarding damages under both ATS and TVPA for same acts of torture). 56 Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250 (11th Cir. 2005) (“In some case, the different definitions might actually make a difference; we recall that neither Congress nor the Supreme Court has urged us to read the TVPA as narrowly as we have been directed to read the Alien Tort Act generally.”). 57 See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002) (“The severity requirement is crucial to ensuring that the conduct proscribed by the Convention and the TVPA is sufficiently extreme and outrageous to warrant the universal condemnation that the term ‘torture’ both connotes and invokes.”). 58 In Price, the court considered the weapons used and the parts of the body involved in determining the severity of the acts alleged. Id.

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effect of such acts.59 Although recognizing the criminality of acts such as repeated jabbing by loaded guns over an eight-hour period,60 being interrogated and held incommunicado,61 or being forcibly separated from a loved one,62 the courts have held that these acts, standing alone, do not constitute the extreme, deliberate, and unusually cruel practices that amount to torture within the international usage.63 The courts have held that the severity requirement is satisfied by acts such as rape,64 forced displacement,65 extrajudicial killings,66 mock executions,67 and inhumane conditions of detention if they are squalid enough and coupled with verbal threats.68 In respect to methods and technique, the alleged perpetrator’s choice of weapon is a key consideration.69 The courts have noted the use of weapons 59

“The more intense, lasting, or heinous the agony, the more likely it is to be torture.” Id. at 93. 60 See Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1294-95 (S.D. Fla. 2003); but see Tachiona v. Mugabe, 234 F. Supp. 2d 401, 420 (S.D.N.Y. 2002) (ruling that jabbing with a gun does constitute torture when coupled with other brutal acts such as execution). 61 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2001). 62 Id. 63 See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (“[T]orture does not automatically result whenever individuals in official custody are subjected even to direct physical assault. Not all police brutality, not every instance of excessive force used against prisoners, is torture under the FSIA.”). 64 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 n.34 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 65 Id. 66 Id. See also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 465 (S.D.N.Y. 2006) (finding that allegations that plaintiffs were shot, raped, beaten with various instruments, stripped of their clothing, tied up, forced to lie for hours in the tropical son, sprayed with chemicals, and denied adequate food, medical care, and sanitary facilities constituted torture actionable under the ATS). 67 Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 186 (D.D.C. 2003). 68 Id. See also Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19 (D.D.C. 2001). 69 See Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 186, 189 (D.D.C. 2003) (noting brutal use of rubber hoses, clubs and pistol barrels).

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specifically designed to prolong pain,70 as well as unorthodox use of instruments not intended to be weapons.71 Whether or not the acts cause physical or mental damage may also be a factor. The district court in Aldana refused to recognize plaintiffs’ claims as torture, noting that they had not alleged that they had “actually suffered any serious physical injury to their persons—just that they were exposed to a harrowing set of conditions.”72 In contrast, where the plaintiffs bear permanent physical scars from the alleged torture, like the plaintiffs in the Eleventh Circuit case of Abebe-Jira v. Negewo,73 or where the plaintiffs suffer from permanent mental scars, like the former prisoners with post-traumatic stress disorder in Acree v. Republic of Iraq,74 the court is more likely to find that such acts amount to torture. Purpose: The Torture Convention states that the abuse must be inflicted for one of a number of enumerated purposes, including “obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.”75 This requirement is included in the TVPA and the FSIA. The courts have held that this list of “purposes” is meant to be illustrative, not exhaustive.76 To this end, the courts have allowed non-enumerated purposes such as aiding and abetting in an ethnic cleansing campaign to give rise to a torture claim.77 Based on the jurisprudence, it seems that any purpose that is 70 Cabello v. Fernandez-Larios, 402 F.3d 1148, 1152 (11th Cir. 2005) (noting dangerous nature of defendant’s use of a corvo, a curved sword “designed to inflict fatal wounds while causing a prolonged and painful death.”) 71 Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 263-64 (D.D.C. 2002) (finding that torturers used catheter for non-medical purposes). 72

Aldana v. Del Monte Fresh Produce, N.A., Inc., 305 F. Supp. 2d 1285, 1294 (S.D. Fla. 2003), aff’d in part, rev’d in part, 416 F.3d 1242 (11th Cir. 2005). The Eleventh Circuit reversed the district court’s dismissal of claims for mental torture, as discussed infra text at note 82, but affirmed dismissal of the claims for physical torture for failure to specify the acts allegedly amounting to torture. See infra note 83. 73 72 F.3d 844, 845 (11th Cir. 1996) (noting that lack of medical care resulted in permanent physical scarring to plaintiff). 74

Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 186, 187 (D.D.C. 2003).

75

See supra note 49.

76

Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 187 (D.D.C. 2003).

77

See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006)

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comparably malicious, deliberate, and purposive in nature to those listed will suffice. Where plaintiffs failed to state any purpose for the alleged torture, however, the courts have refused to guess at the underlying purpose for the abuse and have dismissed the claim.78 Mental Torture: The definition of torture expressly distinguishes between physical and mental forms of torture. The TVPA goes into greater detail than the Torture Convention in defining mental torture.79 Although the TVPA definition of mental suffering is quite broad, its enumeration of specific acts could potentially eliminate other unanticipated forms of mental torture covered by the Torture Convention, though no cases to date have drawn a distinction in this regard. The acts that constitute mental torture are often highly specific, such as throwing lit matches around a victim wrapped in a fuel-soaked blanket80 or watching others being beaten and being ordered to confess on penalty of the same vicious beating.81 In Aldana, the Eleventh Circuit reversed dismissal of claims of mental torture on behalf of trade unionists who were taken into the custody of a security force and repeatedly threatened with imminent death in retaliation for their union activities.82 The Aldana complaint detailed the (appeal pending) (holding that torture occurred where purpose was aiding and abetting a campaign of ethnic cleansing). 78

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 94 (D.C. Cir. 2002). 79

Section 3(b)(2) of the TVPA describes mental torture as “prolonged mental harm caused by or resulting from”: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. 80

Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 190 (D.D.C. 2003).

81

Price v. Socialist People’s Libyan Arab Jamahiriya, 274 F. Supp. 2d 20, 25 (D.D.C. 2003). 82 Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252-53 (11th Cir. 2005).

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repeated threats as well as acts that lent credibility to those threats, such as pointing a loaded gun at the head of one of the plaintiffs. Plaintiffs also alleged that they suffered—and continue to suffer—severe mental anguish as a result of their ordeals. Form of the Pleading: Plaintiffs should specify the nature of the acts that give rise to the claim of torture. Where the statements in the pleadings are conclusory and lacking specific detail, the allegations alleged in the claim will not survive a motion to dismiss.83 2.

Extrajudicial Killing or Summary Execution

An extrajudicial killing or summary execution is a violation of the most basic internationally protected right, the right to life.84 The possibility of asserting a more general violation of that right is discussed later in this chapter, in Section E.12. This section discusses claims based on executions. Two of the U.S. human rights statutes, the Torture Victim Protection Act (TVPA)85 and the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA),86 specifically provide for a claim of extrajudicial killing. The FSIA exception incorporates the TVPA definition of extrajudicial killing.87 A killing that meets this definition would be actionable under the other statutes as well: 83 See id. at 1253 (dismissing physical torture claims because pleadings were largely conclusory, where specified acts, including “pushing, shoving and having one’s hair pulled,” did not constitute severe pain and suffering); Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93-94 (D.C. Cir. 2002) (remanding plaintiffs’ claim to district court so that plaintiffs could amend complaint alleging acts of “kicking, clubbing, and beatings” that was not detailed enough to evince the degree of cruelty necessary to reach a level of torture). 84 See, e.g., Universal Declaration of Human Rights, art. 3 (“Everyone has the right to life”). 85 28 U.S.C. § 1350 (note), § 2(a)(2) (“An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.”). See Chapter 4 for discussion of the TVPA. 86 28 U.S.C. § 1605(a)(7). See discussion of this exception to the Foreign Sovereign Immunities Act in Chapter 5. 87 28 U.S.C. § 1605(e)(1) (“the terms ‘torture’ and ‘extrajudicial killing’ have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991”).

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For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.88 The ATS,89 which provides jurisdiction over federal common law claims for widely accepted, clearly defined violations of international law, encompasses such killings as well.90 Moreover, any cause of action relying on a domestic tort claim would include such a killing as a wrongful death.91 U.S. human rights cases have upheld claims under the ATS, the TVPA, and the “state sponsors of terrorism” exception to the FSIA based on death squad killings and assassinations92 ; bombings, both targeted and indiscriminate93 ; and the death of a captive as a result of mistreatment and neglect by his captors.94 The TVPA definition reflects the United States’ vehement defense of the legality of the death penalty, excluding killings authorized by a court that adheres to “civilized” standards of due process. An execution committed after an 88

TVPA, § 3(a). 28 U.S.C. § 1350. See discussion of the violations actionable under the ATS in Chapter 3. The Anti-Terrorism Act (ATA) authorizes civil claims for certain violations of federal criminal law, including murder, and therefore would encompass an extrajudicial killing. 18 U.S.C. §§ 2331, 2333. See discussion of the Anti-Terrorism Act in Chapter 6. 90 See, e.g., In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1996); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). 91 See discussion of state tort law claims in Chapter 6. 92 See Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1996); Higgins v. Islamic Republic of Iran, Civ. No. 1:99-00377, 2000 U.S. Dist. LEXIS 22173 (D.D.C. Sept. 21, 2000); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1542-43 (N.D. Cal. 1987) (Forti I). 93 See Owens v. Republic of Sudan, 412 F. Supp. 2d 99 (D.D.C. 2006); Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 297 (D.D.C. 2003); Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1 (D.D.C. 2000). 94 See Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 263-64 (D.D.C. 2002). 89

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unfair trial or an equivalent denial of due process would violate this norm.95 However, the TVPA goes even further, requiring that a death sentence be decreed by “a regularly constituted court.” The TVPA also excludes “lawfully carried out” killings, which might encompass justified killings during war, by law enforcement personnel or in self-defense, issues that have not been addressed explicitly in any of the human rights cases. In a case of first impression, two cases filed against Royal Dutch Shell, a former Shell officer and a subsidiary alleged that the corporations were complicit in the Nigerian government’s execution of a group of environmental activists—Ken Saro-Wiwa and other members of the “Ogoni Nine”—after a sham trial. Plaintiffs alleged a series of due process violations, including that the decedents were sentenced to death by a “special tribunal” formed after the events underlying the prosecution took place and that they were denied representation by counsel. The claims by some members of the group were dismissed in a short decision by a district court judge who concluded that she was “unpersuaded that there is a well-defined customary international law that prohibits” an execution after such an inadequate trial.96 However, she also noted that she had not been presented with briefing on the issue. In fact, the Wiwa and Kiobel claims are amply supported both by the legislative history of the TVPA and by international law sources. First, the legislative reports that accompanied passage of the TVPA note that the definition of an extrajudicial killing was derived from Common Article 3 of the Geneva Conventions, which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees that are recognized as indispensable by civilized peoples.”97 The Supreme Court recently interpreted this language in Hamdan v. Rumsfeld, holding that the “core meaning” of the term “‘regularly constituted court’ . . . definitely exclud[es] all special 95 Forti I emphasized that plaintiffs had alleged a killing by state officials “with neither authorization nor recourse to any process of law.” Forti v. Suarez-Mason, 672 F. Supp. 1531, 1542 (N.D. Cal. 1987). 96 Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 465 (S.D.N.Y. 2006) (interlocutory appeal pending). For additional sources, see Brief Amicus Curiae of International Scholars, Kiobel v. Royal Dutch, No. 06-4800 (2d Cir. May 15, 2007), available at www.ccr-ny.org/humanrightsbook. 97 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), Common Article 3(1)(d) (Article 3, known as a “Common Article,” is repeated verbatim in each of the 1949 Geneva Conventions).

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tribunals.’”98 The special tribunal at issue in Kiobel and Wiwa clearly fails this test—and therefore fails the TVPA standard. Moreover, Hamdan describes the prohibition on special tribunals as part of the “core meaning” of the Geneva Conventions, indicating that it would meet the ATS standard. Second, international human rights norms strongly support the requirement of procedural guarantees before a death penalty is imposed. The Human Rights Committee, for example, has determined that it would be a violation of the right to life to impose the death penalty if the defendant had not received “a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defense, and the right to review by a higher tribunal.”99 The European Court of Human Rights has held similarly that a death sentence can only be imposed if the “the ‘court’ which imposes the penalty [is] an independent and impartial tribunal.”100 Extrajudicial killing claims under the FSIA raise two unique issues. First, the FSIA states explicitly that a claim can be based on “the provision of material support or resources” for an extrajudicial killing.101 Second, the cause of action 98

126 S. Ct. 2749, 2796-97 (2006) (citing 1 INT’L COMM. OF RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 355 (2005)). Although the majority opinion declined to elaborate further, a four-judge plurality observed that a “regularly constituted court” must provide basic procedural protections, including those detailed in Article 75 of Protocol I to the Geneva Conventions (1977) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Id. at 2797-98, 2797 n.66. 99 Human Rights Committee, General Comment No. 6 (1982). Multiple decisions by the committee apply this general rule to specific violations, finding a human rights violation if the death penalty is imposed when a defendant is prevented from seeing his lawyer confidentially; no appeal is permitted; evidence produced through torture was introduced; or trial was unduly delayed. 100 Ocalan v. Turkey, App. No. 46221/99, 2003 Eur. Ct. H.R. 125, at ¶¶ 203-04. The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has concluded that the Special Rapporteur’s mandate includes the administration of the death penalty in cases where, inter alia, (h) The accused is denied his or her right to appeal or seek pardon or commutation of a death sentence; (i) A death sentence is imposed following a trial where international standards of impartiality, competence, objectivity and independence of the judiciary were not met; [or] (j) The legal system does not conform to minimum fair trial standards. Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, U.N. Doc. E/CN.4/2002/74 (2002), ¶ 9. 101 28 U.S.C. § 1605(a)(7).

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under the FSIA is based in state wrongful death laws.102 In Salazar v. Islamic Republic of Iran, for example, the federal court applied the law of Illinois, the state of the plaintiff’s domicile.103 These and other issues peculiar to the FSIA are discussed in Chapter 5. 3.

Hostage-Taking

The “state sponsors of terrorism” exception to Foreign Sovereign Immunities Act (FSIA) specifically grants jurisdiction over claims for “personal injury or death that was caused by an act of . . . hostage taking.”104 Such a claim might also be sustainable under either the ATS,105 as a violation of the law of nations, or under the Anti-Terrorism Act, which authorizes civil claims for certain violations of federal criminal law.106 The FSIA defines the violation by reference to the International Convention Against the Taking of Hostages, which defines hostage-taking as follows: Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention. Any person who attempts to commit an act of hostage-taking, or participates as an accomplice of anyone who commits or attempts to commit an act of hostage-taking likewise commits an offence for the purposes of this Convention.107 This definition is likely to be the starting point for claims under any other jurisdictional basis. To date, only one case has upheld this claim, Simpson v. Socialist People’s Libyan Arab Jamahiriya.108 In that case, a husband and wife were on a cruise in 102

See Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004). 103 370 F. Supp. 2d 105 (D.D.C. 2005). 104 28 U.S.C. § 1605(a)(7). 105 28 U.S.C. § 1350. 106 18 U.S.C. §§ 2331, 2333. 107 International Convention Against the Taking of Hostages, art. 1. 108 362 F. Supp. 2d 168 (D.D.C. 2005), aff’d, 470 F.2d 356 (D.C. Cir. 2006).

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the Mediterranean Sea when Libyan authorities boarded the ship and detained the passengers. The wife was released after three months; the husband was detained for seven months. In an earlier decision, the D.C. Circuit Court had overturned a decision denying a motion to dismiss a hostage-taking claim against Libya, for failure to state that Libya had a coercive purpose.109 As explained by the circuit court, “The essential element of the hostage-taking claim is that the intended purpose of the detention be to accomplish the sort of third-party compulsion described in the [International Convention Against the Taking of Hostages].”110 The plaintiffs’ original complaint “failed to ‘allege that Libya’s intended purpose . . . was to compel anyone to do or abstain from doing any act.’ ”111 On remand, the plaintiffs amended their complaint to include several allegations of Libya’s intent, including the claim that Libya intended to deter future U.S. attacks against Libya. The district court found these allegations sufficient to state a claim for hostage-taking.112 Noting that the Convention recognizes that the condition may be “implicit,” the court held that it was not necessary to allege that Libya “issued an explicit demand for the hostages’ release.”113 The D.C. Circuit upheld this decision, holding that it is not necessary that the hostage-takers demands be communicated to a third party.114 109

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 235 (D.C. Cir. 2003), rev’g in part, 180 F. Supp. 2d 78, 89 (D.D.C. 2001). 110 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 235 (D.C. Cir. 2003). In Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), the District of Columbia Circuit rejected a hostage-taking claim because the complaint alleged “an admittedly unpleasant imprisonment” but did not assert that the detention was designed to compel a particular result: The definition speaks in terms of conditions of release; the defendant must have detained the victim in order to compel some particular result, specifically to force a third party either to perform an act otherwise unplanned or to abstain from one otherwise contemplated so as to ensure the freedom of the detainee. . . . In this case, the plaintiffs have suggested no demand for quid pro quo terms between the government of Libya and a third party whereby [the plaintiffs] would have been released upon the performance or non-performance of any action by that third party. Id. at 94-95. 111 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 168, 176 (D.D.C. 2005) (quoting Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 235 (D.C. Cir. 2003)). 112 Id. at 175-79. 113 Id. at 178-79. 114 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.2d 356, 360-61 (D.C. Cir. 2006).

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4.

Aircraft Sabotage

The “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA) specifically grants jurisdiction over claims for “personal injury or death that was caused by an act of . . . aircraft sabotage.”115 The FSIA refers to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, which defines aircraft sabotage as when a person “unlawfully and intentionally”: (a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or (b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or (d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or (e) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.116 The Convention also encompasses both attempts to commit such acts and accomplice liability.117 Such claims might also be actionable under either the ATS,118 as violations of the law of nations, or under the Anti-Terrorism Act, which authorizes civil claims for certain violations of federal criminal law.119 Although an early district court case noted that airplane hijacking was among the international law violations actionable under the ATS, the court dismissed the claim for lack of 115

28 U.S.C. § 1605(a)(7). Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, art. 1(1). 117 “Any person also commits an offence if he: (a) attempts to commit any of the offences mentioned in paragraph 1 of this Article; or (b) is an accomplice of a person who commits or attempts to commit any such offence.” Id., art. 1(2). 118 28 U.S.C. § 1350. 119 18 U.S.C. §§ 2331, 2333. 116

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evidence linking the defendant to the hijacking.120 In a more recent case addressing responsibility for the September 11, 2001, attacks, over 3,000 plaintiffs—including survivors, families of victims, and insurance companies—brought a series of ATS claims against banks, charities, investment trusts, and government ministers, alleging complicity in and negligence in failing to prevent the attack.121 The district court declined to dismiss plaintiffs’ ATS claims, holding that “aircraft hijacking is generally recognized as a violation of international law” and that “courts . . . have almost unanimously permitted actions premised on a theory of aiding and abetting and conspiracy.”122 E. ADDITIONAL ATS CLAIMS The ATS grants federal courts jurisdiction over claims for torts “in violation of the law of nations,” a standard analyzed in the opening sections of this chapter and in Chapter 3, Section B. In Sosa v. Alvarez-Machain, the Supreme Court interpreted the statute to encompass claims for international law violations that are widely accepted and clearly defined.123 As discussed in the previous section, the four violations enumerated in the TVPA and the “state sponsors of terrorism” exception to the FSIA clearly meet this standard. This section discusses additional violations that are already recognized as falling within the ATS standard or are likely to be recognized when they are litigated. This list obviously is neither exclusive nor definitive, as the international law norms will change over time. Moreover, as discussed is Section B, it is not necessary that the entire scope of an international law violation meet the ATS standard, if the conduct alleged falls within a widely accepted, clearly defined core. As explained in the Xuncax v. Gramajo opinion, “It is not necessary that every aspect of what might comprise [an international law violation] be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law.”124 120

Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 121 (D.D.C. 2003) (citing Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995), for the proposition that war crimes, crimes committed in pursuit of genocide, slave trading, aircraft hijacking, and piracy all fall with the reach of the ATS). 121 In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005). 122 Id. at 826 (citations omitted). 123 542 U.S. 692 (2004). 124 886 F. Supp. 162, 187 (D. Mass. 1995).

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1.

Genocide

Claims of genocide are actionable under the ATS, satisfying the federal common law standard of a widely accepted, clearly defined violation of the law of nations. Genocide is defined by the Genocide Convention125 as follows: [A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.126 This definition is generally accepted for purposes of customary international law127 and has been adopted by the international criminal tribunals.128 It applies where the prohibited acts are committed with the intent to destroy a targeted group in whole or in part, thus arguably excluding some acts unintentionally causing such destruction that are incidental to some other purpose. 125

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). 126 Id., art. 2. The Convention states: “The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.” Id. art. 3. 127 RESTATEMENT (THIRD), supra note 33, § 702 cmt. d; International Court of Justice, Reservations to the Convention on Genocide Case (Adv. Op.), 1951 I.C.J. 15, 23 (Advisory Opinion of May 28, 1951) (prohibition against genocide rises to the level of customary international law; genocide constitutes a crime of universal jurisdiction). 128 Article 4(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Article 2(2) of the Statute of the International Criminal Tribunal for Rwanda (ICTR) and Article 6 of the Statute of the International Criminal Court (ICC) adopt the genocide definition from the Genocide Convention.

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The Genocide Convention requires states to refrain from practicing or encouraging genocide and to punish persons guilty of genocide or conspiracy to commit genocide.129 Although certain exigent circumstances may excuse or justify killings (e.g., self-defense, war, or, in some legal systems, capital punishment), nothing can excuse or justify genocide.130 The absolute prohibition against genocide has been reaffirmed in U.N. agreements and resolutions131 and incorporated into U.S. domestic law through the Genocide Convention Implementation Act.132 129

Genocide Convention, arts. 1, 3. Genocide is a crime of universal jurisdiction: all nations are obligated to prevent genocide and to punish those who commit it, and perpetrators can be brought to justice wherever they are apprehended. RESTATEMENT (THIRD), supra note 33, § 404; Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 428 (2d Cir. 1987), rev’d on other grounds, 488 U.S. 428 (1989) (“certain offenses, like piracy and genocide, are offenses against the law of nations wherever they occur. . . . [U]nder international law, a state may punish these offenses even when they occur outside the state’s territory.”). 130 See Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 94 (1981) (“[I]t is fair to say that no circumstance, however ‘exigent,’ can justify murder at the scale of genocide.”). 131 See, e.g., G.A. Res. 95, 1 GAOR U.N. Doc. A/64/Add.1, at 188 (1946) (affirming Nuremberg principles); G.A. Res. 96(I), U.N. Doc. A/64/Add.1, at 189 (1946) (genocide is a crime under international law); Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, Dec. 3, 1973, G.A. Res. 3074, 1973 U.N.Y.B. 572, U.N. Doc. A/RES/28/3074 (1973). See generally LOUIS SOHN & THOMAS BUERGENTHAL, THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 556-735 (1973). 132 See Genocide Convention Implementation Act, 18 U.S.C. §§ 1091-1093 (2000). The Act makes genocide a crime punishable under U.S. law when committed within the territory of the United States or by a national of the United States. 18 U.S.C. § 1091(a), (b), (d). It also penalizes incitement to commit genocide. 18 U.S.C. § 1091(c). The Kadic court rejected an argument that the Genocide Convention Implementation Act bars a cause of action for genocide under the ATS. Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996). Section 1092 of the Act states that it “shall not be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding.” Kadic reasoned that “the legislative decision not to create a new private remedy does not imply that a private remedy is not already available under the Alien Tort Act.” Id. A contrary conclusion, the court noted, would effectively repeal by implication the ATS insofar as it applies to genocide, a result disfavored in U.S. law. Id.

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The prohibition of genocide binds private persons as well as governments and government officials and thus does not require state action: “Persons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”133 In the first case to consider a genocide claim brought within the ATS, the Second Circuit in Kadic v. Karadzic held that the status of the defendant as a private actor or a state official was irrelevant: Appellants’ allegations that Karadzic personally planned and ordered a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats clearly state a violation of the international law norm proscribing genocide, regardless of whether Karadzic acted under color of law or as a private individual. The District Court has subject-matter jurisdiction over these claims pursuant to the Alien Tort Act.134 In Presbyterian Church of Sudan v. Talisman Energy, Inc., the district court applied Kadic to hold that plaintiffs had adequately pled a claim of genocide against the corporate defendant.135 The court first found sufficient the allegation that the corporation “collaborated” with the government of the Sudan in a “‘war of genocide’ against the population in the southern part of the country”: Specifically, plaintiffs allege that defendants collaborated to commit gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnaping, rape, and enslavement. Collectively, plaintiffs claim that these activities amount to genocide.136 This genocide, which plaintiffs also describe as a jihad, or holy war, is purportedly aimed at the forced Islamization of the south, and has resulted in approximately two million deaths and the displacement of four million people. Christians and those practicing traditional indigenous religions are subject to intense persecution, including 133

Genocide Convention, art. 4 (emphasis added). See S. REP. NO. 100-333, ch. IV (1988). 134 Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995). 135 244 F. Supp. 2d 289 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 136 Id. at 296.

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extrajudicial killing, kidnaping, rape, enslavement, and confiscation of property.137 The court held that corporations could be held liable under the ATS for aiding and abetting violations such as genocide. In particular, the court rejected the argument that a corporation cannot have the specific intent to commit genocide, noting that “[i]t is well-established . . . that corporations may be criminally liable for offenses requiring a specific intent.”138 A second district court judge denied Talisman’s post-Sosa motion to dismiss, holding that genocide clearly meets the Sosa requirement of a widely accepted, clearly defined international law norm.139 All courts faced with claims of genocide under the ATS have reached the same result. In Mehinovic v. Vuckovic, for example, the court held that the defendant’s knowing, willing participation in the pattern of attacks against civilians in Bosnia supported a finding of genocide.140 In Sarei v. Rio Tinto, PLC, the court recognized that a “medical blockade constituted genocide because it foreseeably resulted in the killing of natives, caused serious bodily harm, [and] was deliberately calculated to destroy plaintiffs and their way of life.”141 In Xuncax v. Gramajo, the court noted that the defendant’s attacks on the indigenous population of Guatemala constituted genocide, although plaintiffs had not alleged genocide as a cause of action.142 Courts have denied genocide claims where they found that one or more of the elements of the international definition were missing. In Estate of Rodriquez v. Drummond Co., the court dismissed a union’s genocide claim because the 137

Id. at 298 (citations omitted). Id. at 316 n.28. 139 Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 140 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002). 141 221 F. Supp. 2d 1116, 1149 (C.D. Cal. 2002), dismissed on other grounds, dismissal rev’d by Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. See also Mushikiwabo v. Barayagwiza, Civ. No. 94-3627, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. Apr. 8, 1996) (defendant responsible for genocide when he participated in coordinated, genocidal attacks in Rwanda). 142 886 F. Supp. 162, 187-88 n.35 (D. Mass. 1995). 138

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Columbian trade union was not a national, ethnic, racial, or religious group.143 The district court in Bao Ge v. Li Peng rejected a genocide claim based on forced prison labor, holding that while such labor under dire conditions may be condemnable in its own right, it is not the equivalent of the acts of genocide at issue in Kadic.144 And in In re Agent Orange Product Liability Litigation, the court concluded that the complaint did not state a claim for genocide both because the United States did not use herbicides in Vietnam with the specific intent to destroy any group and because the herbicides were not intentionally designed to harm individuals or to starve a whole population into submission or death.145 The Fifth Circuit rejected an effort to state a claim for “cultural genocide” in Beanal v. Freeport-McMoran, Inc.146 The Indonesian plaintiff alleged cultural genocide against a U.S. corporation for conduct that resulted in “displacement, relocation and purposeful, deliberate, contrived and planned demise of a culture of indigenous people.”147 Noting that the Convention Against Genocide defines genocide as the destruction of a “group,” not a “culture,”148 the court cited Kadic as interpreting genocide to encompass acts deliberately calculated to physically destroy the group.149 Given the stature of genocide in international customary law, it is unlikely any court would hesitate to find genocide within the reach of the ATS.150 143

256 F. Supp. 2d 1250, 1260 (N.D. Ala. 2003). 201 F. Supp. 2d 14 (D.D.C. 2000), aff’d per curiam sub nom. Bao v. Li, 35 Fed. Appx. 1 (D.C. Cir. 2002). 145 373 F. Supp. 2d 7, 115, 145 (E.D.N.Y. 2005). The court concluded that the herbicides were primarily applied to plants in order to protect troops against ambush, not to destroy a people. 146 969 F. Supp. 362, 373 (E.D. La. 1997), aff’d, Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167-68 (5th Cir. 1999) (holding that “Beanal has not demonstrated that cultural genocide has achieved universal acceptance as a discrete violation of international law.”). 147 Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 373 (E.D. La. 1997). 148 Id. 149 Id. (citing Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir. 1995)). 150 See Blum & Steinhardt, supra note 130, at 91-94 (describing genocide, along with torture, summary execution and slavery, as “core human rights violations” which have received “unequivocal condemnation” and are likely candidates for ATS jurisdiction). 144

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2.

Crimes Against Humanity

Crimes against humanity are actionable under the ATS, satisfying the federal common law standard of a widely accepted, clearly defined violation of the law of nations. The concept of a crime against humanity dates back to the 19th century.151 It was first codified as a basis for criminal prosecutions in the Nuremberg Charter, when German leaders were prosecuted for massive abuses committed against their own citizens.152 Crimes against humanity are part of a pattern of abuses committed against a civilian population. While war crimes only address violations committed against enemy soldiers or civilians, crimes against humanity encompass violations committed against any population, regardless of the nationality of the victim.153 The wide acceptance of crimes against humanity as an international law violation is demonstrated by this longstanding recognition and the inclusion of the violation in the international criminal tribunals authorized by the U.N. Security Council and in the Statute of the International Criminal Court (ICC).154 The ICC Statute also provides a core definition of crimes against humanity that is consistent with customary international law155 : certain acts of violence committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack.156 Note that the definition 151 See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 1-44 (1999) (discussing international legal recognition of crimes against humanity in the St. Petersburg Declaration of 1868, the Hague Convention of 1899, and the Fourth Hague Convention of 1907). 152

Id.

153

War crimes and crimes against humanity are different claims. See, e.g., Quinn v. Robinson, 783 F.2d 776, 799 (9th Cir. 1986) (noting that in a prior case, the court had “erroneously assumed that ‘crimes against humanity’ was synonymous with ‘war crimes.’ ”). 154 See Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), art. 5; Statute of the International Criminal Tribunal for Rwanda (ICTR), art. 3; Statute of the International Criminal Court (ICC), art. 7. 155 Although the administration of George W. Bush withdrew the U.S. signature from the ICC Statute, the U.S. objections did not concern the definitions of the crimes and therefore do not undermine the clarity of definition and consensus surrounding the violations covered by the statute. See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 96 AM. J. INT’L L. 724 (2002). 156

ICC Statute, art. 7. The ICC Statute also includes aspects that are not part of the customary international law definition, but rather reflect compromises among the

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resolves several issues that had triggered debates in the past: (1) the crimes must be part of an attack that is widespread or systematic, but not necessarily both; (2) the target of the attack must be the civilian population;157 and (3) there is no requirement of a nexus between the enumerated acts and an armed conflict or armed hostilities. Article 7 lists the following non-inclusive acts that would constitute crimes against humanity: (a) murder, (b) extermination, (c) enslavement, (d) deportation or forcible transfer of population, (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, (f) torture, (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court, (i) enforced disappearance of persons, (j) the crime of apartheid, and (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.158 delegates to the conference that drafted the statute. For example, the Statute refers to an attack committed “pursuant to or in furtherance of a State or organizational policy,” Article 7(2)(a), a requirement that is not found in customary international law. See Gueneal Metraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 HARV. INT’L L.J. 237, 281-82 (2002) (concluding that notwithstanding the ICC Statute, “there is nothing in customary international law which mandates the imposition of an additional requirement that the acts be connected to a policy or plan.”). 157 The Nuremberg Charter defined crimes against humanity as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), art. 6(c), reprinted in 39 AM. J. INT’L L. 257 (1945) (Supp.). 158 Id.

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In 2004, the court in Doe v. Saravia conducted a detailed post-Sosa review of the international and U.S. precedents governing crimes against humanity. The court traced the development of crimes against humanity from the Nuremberg Charter, through the U.N. declarations and treaties that endorsed the Nuremberg principles, to the authorizing statutes and jurisprudence of the modern criminal tribunals.159 Saravia summarized the modern definition as including four elements: (1) a violation of one of the enumerated acts; (2) committed as part of a widespread or systematic attack; (3) directed against a civilian population; and (4) committed with knowledge of the attack. Significantly, even a single act by an individual, taken within the context of a widespread or systematic attack against a civilian population, can constitute a crime against humanity.160 Both pre-Sosa and post-Sosa cases have affirmed the status of crimes against humanity as actionable under the ATS. For example, Mehinovic v. Vuckovic found that acts of torture, imprisonment, and cruel, inhuman, or degrading treatment committed by the defendant as part of a campaign of ethnic cleansing constituted crimes against humanity.161 Saravia found that the assassination of Archbishop Romero constituted a crime against humanity: The Romero assassination occurred in an environment of state-sanctioned violence that was both widespread throughout El Salvador and constituted systematic, inhumane attacks on the civilian population by the ruling military. The death squad which perpetrated the murder of Archbishop Romero acted as part of a calculated strategy by the military to terrorize the civilian population into submission. . . . Saravia knew that he was involved in an operation to commit the murder of one of the most important civilians in El Salvador, its revered Archbishop. Given that this particular act took place within the context of other widespread and systematic attacks against the civilian population by state security forces and state-sponsored death squads, the assassination of Romero meets the four criteria for establishing it as a crime against humanity.162 Similarly, in Cabello v. Fernandez-Larios, the Eleventh Circuit upheld a jury verdict for a crime against humanity based on evidence that the decedent’s 159 160 161 162

348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004). Id. at 1156. 198 F. Supp. 2d 1322 (N.D. Ga. 2002). Doe v. Saravia, 348 F. Supp. 2d 1112, 1157 (E.D. Cal. 2004).

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killing was part of a pattern of “politically motivated killings” after General Augusto Pinochet’s 1973 coup in Chile.163 3.

War Crimes

The laws of war, which are among the most widely recognized norms of international law, outlaw specific forms of mistreatment of enemy soldiers, the wounded, prisoners of war, and civilians, and protect certain kinds of property and cultural artifacts from destruction.164 Many of their provisions have been recognized as customary international law, binding on all States, whether or not they are a party to specific international agreements.165 Largely codified in the 163

402 F.3d 1148, 1158, 1161 (11th Cir. 2005). See also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y. 2006) (torture and arbitrary detention committed as part of intentional, systematic attack against civilian population stated actionable claim of crimes against humanity); Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1150 (C.D. Cal. 2002), dismissed on other grounds, dismissal rev’d by Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (allegation of government-imposed blockade that prevented medicine and other essential supplies from reaching population and caused more than 10,000 deaths sufficient to state a claim for crimes against humanity); Aldana v. Fresh Del Monte Produce, N.A., Inc., 305 F. Supp. 2d 1285, 1299 (S.D. Fla. 2003) (attack on members of a Guatemalan trade union was not part of a widespread or systematic attack and thus was not actionable as a crime against humanity); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 22, 2002) (allegations of torture, deportation and forced exile as part of widespread attack against the Ogoni people constituted claim of crimes against humanity). Note that a specific international agreement bars application of any statute of limitations to war crimes and crimes against humanity. Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 164 The four Geneva Conventions of 1949 have been ratified by over 190 nations, including the United States. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention Relative to the Treatment of Prisoners of War; Convention Relative to the Protection of Civilian Persons in Time of War. For comprehensive overviews of the history and current status of the laws of war, see, e.g., JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (International Committee of the Red Cross) (2005); MARCO SASSO` LI, HOW DOES LAW PROTECT IN WAR?: CASES, DOCUMENTS, AND TEACHING MATERIALS ON CONTEMPORARY PRACTICE IN INTERNATIONAL HUMANITARIAN LAW (1999). 165 See, e.g., Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704 at 9, ¶ 35 (May 3, 1993), adopted by the

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Hague Conventions,166 the Geneva Conventions167 and the two Protocols,168 many of the rules governing the conduct of war have also been incorporated into domestic laws around the world and applied in national practice. More recently, the Statute of the International Criminal Court (ICC) defined war crimes in great detail.169 Every court to reach the issue has held that war crimes are actionable under the ATS. In its broadest sense, the term “war crimes” encompasses any serious violation of the laws of war.170 The minimal rules governing all armed conflicts are set forth in Common Article 3 of the four Geneva Conventions,171 which bars violence to life and person, including murder, mutilation, cruel treatment, torture, and “outrages upon personal dignity.” Common Article 3 applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” and states that “each Party to the Conflict” must abide by certain minimum rules of conduct. Its norms protecting civilians Security Council, S.C. Res. 827 (May 25, 1993) (the basic international agreements detailing the laws of war have “beyond a doubt become part of customary international law.”); Theodor Meron, The Geneva Conventions as Customary Law, 81 AM. J. INT’L L. 348 (1987). 166 The Hague Conventions include the 1899 International Convention With Respect to the Laws and Customs of War by Land and the 1907 Convention Concerning the Laws and Customs of War on Land. 167 See supra note 164. 168 Protocol on the Protection of Victims of International Armed Conflicts; Protocol on the Protection of Victims of Non-International Armed Conflicts. 169 Article 8 of the ICC Statute defines war crimes to include grave breaches of the Geneva Conventions, serious violations of Common Article 3 of the Conventions, and other serious violations of the laws and customs applicable in international or noninternational armed conflict, and provides a non-exclusive list of prohibited conduct. As noted earlier, the ICC Statute definitions in several places are more restrictive than the customary international law definitions, as a result of compromises among the delegates to the conference that drafted the statute. See supra note 156. 170 Although severe violations of the laws of war clearly meet the widely accepted, clearly defined ATS standard, not every violation of these treaties will lead to an actionable claim. See Theodor Meron, Revival of Customary Humanitarian Law, 99 AM. J. INT’L L. 817 (2005) (discussing the principles of the laws of war that reflect customary international law). 171 The first few articles of the four Geneva Conventions are repeated in each and are known as “common articles.”

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are, without doubt, customary international law.172 Several courts have held that violations of Common Article 3 trigger ATS jurisdiction. In Kadic v. Karadzic, for example, the Second Circuit held that the murder, rape, and other torture, and arbitrary detention of civilians during the war in Bosnia-Herzegovina were actionable under the ATS.173 Common Article 3 clearly applies to non-state actors (i.e., the parties to an internal conflict), as well as to states and those acting under their authority.174 International armed conflicts—those between states—are governed by the more detailed provisions of the Geneva Conventions. The term “war crimes” is also used to refer to grave breaches of the Conventions, such as killing civilians, torture, or inhumane treatment, and willfully causing great suffering or serious injury to body or health, committed as part of an international armed conflict.175 While holding that allegations of such grave breaches would trigger ATS jurisdiction, the Kadic court declined to consider those claims because it would have had to decide whether the conflict in Bosnia was international,176 an issue later resolved by the International Criminal Tribunal for the former Yugosla172

See, e.g., Michael J. Matheson, The U.S. Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L & POL’Y 419, 430-31 (1987) (Common Article 3 is a part of generally accepted customary law); Report on the Protection of War Victims, 296 INT’L REV. OF THE RED CROSS 391, 414 (1993) (same). The International Court of Justice has described Common Article 3 as “a minimum yardstick” applicable to all military conflicts. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 103-04, ¶¶ 218-219 (June 27, 1986) (Merits Judgment). 173 70 F.3d 232, 242-43 (2d Cir. 1995). See also Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1150 (C.D. Cal. 2002), dismissed on other grounds, dismissal rev’d by Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (bombing, killings, other violence and medical blockade constituted war crimes under Common Article 3); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1350-51 (N.D. Ga. 2002) (pattern of torture, inhumane treatment and arbitrary detention of civilians during war in Bosnia constituted violation of Common Article 3); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 8 (D.D.C. 1998), rev’d on other grounds, 257 F. Supp. 2d 115 (D.D.C. 2003) (allegations of violence against women in Algeria stated a claim of war crimes under Common Article 3). 174 Kadic v. Karadzic, 70 F.3d 232, 242-43 (2d Cir. 1995). 175 Fourth Geneva Convention, art. 147. Other grave breaches are: extensive, unjustified, unlawful, and wanton destruction of property; compelling a prisoner or civilian to serve in the enemy’s armed forces or depriving him/her of a fair trial; unlawful deportation or confinement of a civilian; taking civilians as hostages. 176 Kadic v. Karadzic, 70 F.3d 232, 243 n.8 (2d Cir. 1995).

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via.177 The district court in Mehinovic v. Vuckovic affirmed the international nature of the conflict, holding that a Bosnian Muslim suing a participant in the Bosnian Serb campaign of ethnic cleansing stated a claim for grave breaches under the ATS.178 Given their stature under international law, grave breaches of the Geneva Conventions and violations of Common Article 3 meet the Sosa requirements of widely accepted, clearly defined violations of the law of nations and thus are actionable under the ATS.179 4.

Disappearance

Claims of enforced disappearance are actionable under the ATS, satisfying the standard of a widely accepted, clearly defined violation of the law of nations. In 1941, Adolph Hitler ordered that groups of detainees seized in occupied territories be transported to Germany to be disappeared without a trace, in the first documented use of widespread disappearances as a tool of oppression.180 Disappearances reappeared as a policy of state repression in Latin America in the 1970s, when thousands of people disappeared in police custody.181 International human rights bodies recognized that a disappearance constituted a unique human rights violation, distinct from summary execution, arbitrary detention, or other abuses, because uncertainty about the victims’ whereabouts inflicted an extra injury on their families.182 177

Prosecutor v. Tadic, ICTY Appeals Judgment, Case No. IT-94-1, ¶¶ 83-97 (July 15, 1999). 178

Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1351-52 (N.D. Ga. 2002). See also Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 440, 491 (D.N.J. 1999) (forced labor during World War II constituted a war crime; case was dismissed on other grounds). 179

Note that a specific international agreement bars application of any statute of limitations to war crimes. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 180

Christopher K. Hall, Enforced Disappearance of Persons, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 151 (Otto Triffterer ed., 1999). 181 See, e.g., ARGENTINE NATIONAL COMMISSION ON THE DISAPPEARED, NUNCA MAS (1986); Maureen Berman & Roger Clark, State Terrorism: Disappearances, 13 RUTGERS L.J. 531 (1982). 182 See Declaration on the Protection of All Persons from Enforced Disappearance, art. 1(2) (noting severe suffering inflicted on family members of disappeared individuals); U.N. Report of the Working Group on Enforced or Involuntary Disappearance at 47, 39th Sess., U.N. Doc. E/CN.4/1983/14 (Jan. 21, 1983) (noting infringement of rights of family members when relatives are disappeared).

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An enforced disappearance has two basic elements: (1) an abduction by state officials or their agents, followed by (2) an official refusal to acknowledge the abduction or to disclose the detainee’s fate.183 The importance of this second element was stressed by the U.N. General Assembly in 1978, when it expressed concern about the “persistent refusal of [competent] authorities . . . to acknowledge that they hold such persons in their custody.”184 A third element notes that the disappearance removes the disappeared person from the protection of the law. The U.N. Human Rights Council in June 2006 agreed upon the text of a new International Convention for the Protection of All Persons from Enforced Disappearance; the Council sent the draft to the General Assembly for its consideration: For the purposes of this Convention, enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.185 The draft Convention explicitly provides that each state party to it “shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.”186 This language 183

Forti v. Suarez-Mason, 694 F. Supp. 707, 711 (N.D. Cal. 1988) (on reconsideration) (Forti II). 184 U.N. Resolution on Disappeared Persons, Dec. 20, 1978, G.A. Res. 33/173, U.N. GAOR, Supp. No. 45, at 158, U.N. Doc. A/33/45 (1978). 185 Convention on Enforced Disappearance, art. 2. The International Criminal Court employs the same basic definition: “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. Statute of the International Criminal Court, art. 7, ¶ 2(i). The Restatement (Third), supra note 33, § 702(c) includes disappearance as a violation of customary international law. See also Inter-American Convention on Forced Disappearance of Persons, which has been ratified by ten countries, not including the United States. 186 Art. 24(4).

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complements the goal of ATS litigation: holding individual defendants civilly liable for torts in violation of international law. Forti II was the first case to hold that disappearance constituted a violation of the law of nations under the ATS.187 When initially raised in Forti I, the court rejected the disappearance claim as too ill-defined to meet the “universal, obligatory and definable” standard.188 On reconsideration, however, the submission of affidavits from several experts convinced the court that the offense did meet that test, using the two-element definition cited above.189 Later cases have all followed this precedent, finding that claims of enforced disappearance meet the ATS standard.190 5.

Slavery, Forced Labor, Child Labor, and Trafficking

Slavery, the slave trade, and related forms of human bondage are all prohibited by international law and fall within the Sosa definition of widely accepted, clearly defined violations of international law that trigger ATS jurisdiction. a.

Slavery and the Slave Trade

Slavery and the slave trade are among the oldest internationally recognized violations of the law of nations.191 The Restatement (Third) lists the prohibition on “slavery or slave trade” as part of the customary international law of human rights,192 subject to universal jurisdiction.193 Numerous international conventions 187

Forti v. Suarez-Mason, 694 F. Supp. 707, 709-11 (N.D. Cal. 1988). Forti v. Suarez-Mason, 672 F. Supp. 1531, 1542-43 (N.D. Cal. 1987) (Forti I). 189 Forti v. Suarez-Mason, 694 F. Supp. 707, 709-11 and authorities cited (N.D. Cal. 1988). 190 See In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) (upholding claims of disappearance); Xuncax v. Gramajo, 886 F. Supp. 162, 185 (D. Mass. 1995) (same). 191 See Slavery Convention of 1926 (Slavery Convention). Fila ´ rtiga recognized that slavery was prohibited by international law in its well known statement: “[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.” Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 890 (2d Cir. 1980). The Nuremberg Charter charged the Nazi defendants with “enslavement” as a crime against humanity. Charter of the International Military Tribunal (1945). 192 RESTATEMENT (THIRD), supra note 33, § 702(b). 193 Id., § 404. 188

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prohibit slavery.194 Moreover, the prohibition against slavery has been recognized by courts and scholars as a jus cogens norm, binding on all nations regardless of any express treaty or domestic legislation.195 Slavery, like genocide and piracy, is prohibited even in the absence of state involvement.196 The Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”197 Later instruments broadened the definition to include debt bondage and forced marriage.198 The International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1992, prohibits all forms of slavery,199 as does the Universal Declaration of Human Rights (UDHR).200 Slavery is prohibited by the 13th Amendment to the U.S. Constitution, as well as by federal and state statutes.201 194

See generally M. Cherif Bassiouni, Enslavement as an International Crime, 23 N.Y.U. J. INT’L L. & POL. 445 (1991). 195 See generally A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 VA. J. INT’L L. 303 (1999). See also Sampson v. Federal Republic of Germany & Claims Conf., 250 F.3d 1145, 1154 n.5 (7th Cir. 2001) (“[S]ome jus cogens norms are beyond question, such as the norm against slavery.”); United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (stating that slavery rises to the level of a jus cogens norm). 196 Slavery Convention, arts. 1, 2 (state parties to the convention agree to abolish slavery and the slave trade, defined as all acts involved in the capture, exchange or transport of slaves). See Blum & Steinhardt, supra note 130, at 95. 197 Slavery Convention, art. 1. 198 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. 199 ICCPR, art. 8, states: 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labor. . . . The ICCPR excludes certain types of forced or compulsory labor, such as prison labor and military service. Id., art. 8(3)(b), (c). 200 Article 4 states: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” 201 See, e.g., 18 U.S.C. §§ 1581, 1584. The international prohibition may be broader than that contained in U.S. domestic law. See Joey Asher, How the United States Is Violating Its International Agreement to Combat Slavery, 8 EMORY INT’L L. REV. 215 (1994), for a comparison of international and U.S. domestic law regarding the prohibition

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b.

Forced Labor

Forced labor is defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”202 Courts adjudicating claims of forced labor brought under the ATS have held that “forced labor is a modern variant of slavery and is among the ‘handful of crimes . . . to which the law of nations attributes individual liability,’ such that state action is not required.”203 In on slavery. In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court held that involuntary servitude required physical force or the force of law to constitute a violation of law, thereby excluding slavery by trickery, fraud and deceit—methods frequently employed to obtain laborers and covered by international conventions. However, recent U.S. legislation targeting human trafficking, described later in this section, fills much of this gap between the United States and international standards. 202 Convention Concerning Forced or Compulsory Labor, art. 2. In addition to this definition, the Trafficking Victims Protection Act states that “forced labor” occurs when a defendant obtains the labor or services of a person: (1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process. 18 U.S.C. § 1589. 203 Doe v. Unocal Corp., 395 F.3d 932, 946 (9th Cir. 2002) (forced labor violates the law of nations), vacated by, rehearing en banc granted by 395 F.3d 978 (9th Cir. 2003) (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794-95 (D.C. Cir. 1984) (Edwards, J., concurring)). Although the Unocal decision was vacated, the opinion is often cited for its persuasive power. See In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 83 (E.D.N.Y. 2005). An earlier district court opinion in Unocal reached the same result and was not vacated by the later proceedings in the case. Doe v. Unocal Corp., 963 F. Supp. 880, 891-92 (C.D. Cal. 1997). For the full procedural history of the Unocal case, see Chapter 1, note 66. For more on forced labor, see Doe v. Reddy, Civ. No. 02-05570, 2003 U.S. Dist. LEXIS 26120, at *33 (N.D. Cal. Aug. 4, 2003) (“modern forms of slavery violate jus cogens norms of international law, no less than historical chattel slavery”); Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1260 (D. Ala. 2003) (quoting Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995) (“courts interpreting the AT[S] have found that certain forms of conduct,” including forced labor, “violate the law of nations ‘whether undertaken by those acting under the auspices of a state or only as private individuals.’ ”)); In re World War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) (“forced labor violates the law of nations.”); Iwanowa v.

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holding that forced labor claims may be brought under the ATS, some courts have reasoned that forced labor violates customary international law,204 while others have asserted that “forced labor is so widely condemned that it has achieved the status of a jus cogens violation.”205 Claims of forced labor have been adjudicated in the context of public-private construction projects. In Doe v. Unocal Corp., plaintiffs alleged that they were forced to work on the construction of a pipeline project under threat of violence; they testified that individuals who refused to work in the forced labor program were subjected to murder, rape, and other torture.206 A panel of the Ninth Circuit held that forced labor was a modern variant of slavery, actionable under the ATS.207 The claims of victims of forced labor during World War II have generally been rejected as political questions or because the statute of limitation has expired.208 Forced labor claims brought in the context of reparations for slavery Ford Motor Co., 67 F. Supp. 2d 424, 440 (D.N.J. 1999) (“The use of unpaid, forced labor during World War II violated clearly established norms of customary international law.”). One court rejected a forced labor claim based on prison labor, holding that forced prison labor “is not the equivalent of acts of genocide, or slave labor practices.” Bao Ge v. Li Peng, 201 F. Supp. 2d 14, 22 (D.D.C. 2000). 204 See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 440 (D.N.J. 1999). 205 See, e.g., Doe v. Unocal Corp., 395 F.3d 932, 946 (9th Cir. 2002) and Doe v. Unocal Corp., 963 F. Supp. 880, 891-92 (C.D. Cal. 1997); Doe v. Reddy, Civ. No. 0205570, 2003 U.S. Dist. LEXIS 26120, at *35 (N.D. Cal. Aug. 4, 2003) (“modern forms of slavery violate jus cogens norms of international law”); In re World War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) (analogizing forced labor to slavery in context of jus cogens). 206 395 F.3d 932, 939-40 (9th Cir. 2002). See discussion of the precedential value of the Unocal decisions, supra note 203. 207 Id. at 945. 208 See, e.g., Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999) (dismissing as political question claims by victims of Nazi concentration camps for the defendant’s use of forced labor in the production of Zyklon B); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 483 (D.N.J. 1999) (“forced labor claims arising out of World War II raise nonjusticiable political questions.”). See also In re World War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2d 1160, 1179 (N.D. Cal. 2001) (court held that since Philippines had signed peace treaty with Japan, the Philippines was considered an allied power and the claims of the Filipino plaintiffs were barred). The Iwanowa claims were dismissed because of the statute of limitations. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462-63 (D.N.J. 1999). See discussion of Historical Justice Claims in Chapter 22.

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have also been dismissed. In In re African-American Slave Descendants Litigation, African American descendants of slaves sought compensation from 18 private corporations for the enslavement of their ancestors.209 The court construed the case as a claim for reparations, but also indicated that, even viewed as a forced labor claim, it would have been dismissed on grounds that it raised a non-justiciable political question.210 c.

Child Labor

In 1999, the International Labor Organization (ILO) adopted the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (Worst Forms of Child Labor Convention).211 Article 3 of the Convention states that the term “worst forms of child labor” comprises: (a) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict; (b) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.212 The Convention focuses on the worst forms of child labor, some of which are covered by other international treaties.213 Numerous scholars have asserted that 209

304 F. Supp. 2d 1027, 1055-63 (N.D. Ill. 2004), aff’d on other grounds, 471 F.3d 754 (7th Cir. 2006) (holding that plaintiffs lacked standing to raise claims of their ancestors, and that claims on behalf of their ancestors’ estates were barred by the statute of limitations). 210

Id. at 1056 (citing Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 485 n.84 (D.N.J. 1999). 211

ILO Convention No. 182, adopted June 17, 1999. As of June 16, 2006, 161 nations had ratified the Convention. 212

Madeleine Grey Bullard, Child Labor Prohibitions are Universal, Binding, and Obligatory Law: The Evolving State of Customary International Law Concerning the Unempowered Child Laborer, 24 HOUS. J. INT’L L. 139, 163 (2001). 213 See, e.g., the Forced Labor Convention of 1930 and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices

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the worst forms of child labor constitute violations of customary international law.214 Given that the world community selected these norms as the core standards that virtually every country could accept, they all meet the Sosa standard: that is, they are both widely accepted and clearly defined and therefore trigger ATS jurisdiction.215 d.

Human Trafficking

Human trafficking is the third largest international criminal enterprise.216 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Human Trafficking Protocol), adopted in 2000, defines human trafficking as: [T]he recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or Similar to Slavery; Melissa Torres, Note: Labor Rights and the ATCA: Can the ILO’s Fundamental Rights be Supported Through ATCA Litigation?, 37 COLUM. J.L. & SOC. PROBS. 447, 460-61 (2004). The 1989 Convention on the Rights of the Child and the Minimum Age Convention of the ILO also protect the rights of children. Id. at 461. 214 See, e.g., Bullard, supra note 212, at 159-62 (stating that the prohibition against forced child labor rises to the level of a peremptory norm jus cogens); David M. Smolin, Conflict and Ideology in the International Campaign Against Child Labour, 16 HOFSTRA LAB. & EMP. L.J. 383, 383 (1999). See also Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 830-31 (1988). Bullard argues that “the worst forms of child labor” represent “an evolving international norm of the highest form” because of “the defenseless nature of children, their lack of political clout, and their mental, emotional, and developmental vulnerabilities.” Bullard, supra, at 158-59. 215 Other forms of child labor may also meet the ATS standard. Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act, 37 VAND. J. TRANSNAT’L L. 203, 250 (2004) (“Although some countries with child labor laws tend not to enforce those laws, based on case law to date it would not be surprising to see the prohibition on child labor formally included in the law of nations. As such, any U.S. corporations that use child labor, especially child labor that is prohibited by local law, should be advised that they may face liability under the ATCA.”). 216 Aiko Joshi, The Face of Human Trafficking, 13 HASTINGS WOMEN’S L.J. 31, 40-41 (2002) (human trafficking ranks third behind drug and arms trafficking).

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other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.217 The Human Trafficking Protocol was intended to facilitate development of an international mechanism for preventing human trafficking and to encourage nations to assist trafficked persons.218 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,219 also adopted in 2000, is the first international instrument to define the following terms: (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; (b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration; (c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.220 The U.S. Department of State stressed the importance of the Optional Protocol as a means to protect children “by treating the actions of exploiters as criminal acts which merit serious punishment.”221 Claims asserting violations involving human trafficking clearly fall within the scope of the ATS. However, victims may also seek redress under recently enacted legislation specifically aimed at human trafficking, the Trafficking 217

Human Trafficking Protocol, art. 3. As of June 16, 2006, there were 117 signatories to the Protocol, which supplements the Convention against Transnational Organized Crime. 218 Susan Tiefenbrun, The Saga of Susannah: A U.S. Remedy for Sex Trafficking in Women: The Victims of Trafficking and Violence Protection Act of 2000, 2002 UTAH L. REV. 107, 149 (2002). 219 This protocol supplements the United Nations Convention on the Rights of the Child. As of May 8, 2006, there were 112 signatories. 220 Id. 221 United States Department of State, The Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, Dec. 24, 2002, available at http://www.state.gov/r/pa/prs/ps/2002/ 16216.htm.

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Victims Protection Act of 2000,222 which was amended in 2003 to recognize a private right of action for victims of human trafficking.223 Victims should use this specific action if possible, but might plead a parallel ATS claim as well. The statute and the U.S. legislative involvement in the issue offer additional evidence that human trafficking is a violation of the law of nations that satisfies the requirements of Sosa. 6.

Arbitrary Detention and Arrest

In the 24 years between Fila´rtiga224 and the Supreme Court decision in Sosa v. Alvarez-Machain,225 courts regularly held that claims for arbitrary detention triggered ATS jurisdiction. Although the Court in Sosa rejected Alvarez-Machain’s arbitrary detention claim, future claims based on more egregious conduct should still be viable. Post-Sosa, the viability of such claims will depend on a demonstration that the facts of a particular case meet the Sosa requirement of a violation of a widely accepted, clearly defined international law norm. The prohibition of arbitrary detention is one of the most fundamental of all human rights. The Universal Declaration of Human Rights (UDHR) states: “Everyone has the right to life, liberty and security of person,”226 and “[n]o one shall be subjected to arbitrary arrest [or] detention”227 The International Covenant on Civil and Political Rights (ICCPR) also affirms “the right to liberty and security of person,”228 and states: “No one shall be subjected to arbitrary 222 Pub. L. No. 106-386, 114 Stat. 1466 (2000) (codified as amended in scattered sections of 8, 18, and 22 U.S.C.). 223 Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (2003) (codified in scattered sections of 8, 18, and 22 U.S.C.). The civil remedy is codified at 18 U.S.C. Section 1595(a), which provides: “An individual who is a victim of a violation of 18 U.S.C. §§ 1589, 1590, or 1591 [forced labor or trafficking] may bring a civil action against the perpetrator in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.” See generally Developments in the Law: The Trafficking Victims Protection Act, 118 HARV. L. REV. 2180, 2188 (2005). 224

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 542 U.S. 692 (2004). 226 UDHR, art. 3. 227 UDHR, art. 9. 228 ICCPR, art. 9(1). The ICCPR permits suspension of this protection only “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” ICCPR, art. 4. 225

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arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”229 The U.S. government recognizes this right, identifying prohibited instances of arbitrary arrest or detention as cases in which detainees “are held in official custody without being charged or, if charged, are denied a public preliminary judicial hearing within a reasonable period.”230 As stated by the Tenth Circuit, “No principle of international law is more fundamental than the concept that human beings should be free from arbitrary imprisonment.”231 In Sosa, the Supreme Court described Alvarez-Machain as alleging that he had been detained in Mexico, held overnight, and then delivered to lawful authorities in the United States the following day. The Court characterized his legal position as based on the claim that an arrest would violate international law if “exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances.”232 The Supreme Court rejected this “broad” claim, noting that its “implications would be breathtaking.”233 The Court held that a violation of a binding international norm would require conduct more egregious than a mere violation of domestic arrest procedures: Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. . . . In any event, the label would never fit the 229 ICCPR, art. 9(1). See also African Charter on Human and Peoples’ Rights, art. 6; American Convention on Human Rights, art. 7(3); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 5; Hostages Case, 1980 I.C.J. 3, ¶ 91 (“Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”); Winterwerp Case, 33 Eur. Ct. H.R., (ser. A) ¶ 39 (1979) (“no detention that is arbitrary can ever be regarded as ‘lawful.’ ”). 230 U.S. Department of State, Country Reports on Human Rights Practices, Appendix A (2005), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61746.htm. 231 Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir. 1981). 232 Sosa v. Alvarez-Machain, 542 U.S. 692, 736 (2004). Counsel for Alvarez-Machain explain that the Court distorted both his legal claims and the facts of his case. Ralph Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REV. 2241, 2253 (2004). 233 Sosa, 542 U.S. at 736.

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reckless policeman who botches his warrant, even though that same officer might pay damages under municipal law.234 The Court’s holding in Sosa is quite narrow: “It is enough to hold that 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.”235 The Court then rejected unnamed prior federal court authority on arbitrary detention “to the extent it supports Alvarez’s position.”236 However, none of the prior arbitrary detention cases involved brief detentions in the absence of other abuses, such as torture, and in none of the cases were the detainees “transfer(red) to lawful authorities” for “a prompt arraignment” after less than a day. The cases cited by Alvarez all awarded damages for detentions without any pretense of lawful authority, not for the technical violations of arresting authority that concerned the Sosa Court. In addition, all involved physical abuse and/or much longer periods of detention.237 In Sosa, the Court seemed animated by the view that the problem with Alvarez’s arrest was a technicality, a fact setting that is not present in any of the earlier cases. Compared to prior cases, Sosa was clearly an outlier: no ATS claim had survived based on abuse comparable to that proved by Alvarez. The Supreme Court also expressed concern about the “high level of generality” in the international definition of arbitrary detention. The U.S. government standard quoted above, however, defines arbitrary detention with clarity as occurring when detainees “are held in official custody without being charged or, if charged, are denied a public preliminary judicial hearing within a reasonable period.”238 This standard would meet the Court’s requirements of widespread acceptance and clear definition. 234

Id. at 737. Id. at 738. 236 Id. at 737 n.27. 237 See, e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (detentions of one to six months); Paul v. Avril, 901 F. Supp. 330, 334 (S.D. Fla. 1994) (one plaintiff held for under ten hours, tortured, and permanently injured, while others were held for months); Xuncax v. Gramajo, 886 F. Supp. 162, 170 (D. Mass. 1995) (detentions of 14 hours to two days while being tortured); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (one plaintiff held for more than four years, another arrested and never charged or released). In none of these cases were the detainees ever delivered to lawful authorities. 238 U.S. Department of State, Country Reports on Human Rights Practices, Appendix A (2005), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61746.htm. 235

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In two post-Sosa rulings on claims for arbitrary detention, district courts have held that plaintiffs had stated claims for prolonged arbitrary detention. The court in Doe v. Liu Qi held that plaintiffs who were detained for three or more days without an opportunity to see a family member or lawyer and were tortured met the definition of arbitrary detention.239 In Kiobel v. Royal Dutch Petroleum Co., the court denied a motion to dismiss claims of arbitrary detention, finding that Sosa’s “narrow holding” supported the conclusion that the ATS provides jurisdiction over claims for arbitrary detentions that are both prolonged and a result of state policy.240 Pre-Sosa cases raising claims of arbitrary detention are generally consistent with Liu Qi and Kiobel and with the concerns raised in Sosa. In Mehinovic v. Vuckovic,241 plaintiffs were detained for time periods ranging from one to six months.242 The court held that these detentions were “clearly sufficient to support their claims for arbitrary detention” and therefore actionable under the ATS.243 In a case decided five years earlier, the court in Eastman Kodak Co. v. Kavlin upheld a similar arbitrary detention claim by a Bolivian citizen who was detained in a prison for eight or ten days.244 The court determined that plaintiff’s claim of arbitrary detention was sufficient because “the law of nations does prohibit the state to use its coercive power to detain an individual in inhumane conditions for a substantial period of time solely for the purpose of extorting from him a favorable economic settlement.”245 In Paul v. Avril246 and Xuncax v. Gramajo,247 the detentions ranged from less than a day to two months. In Avril, one of the six plaintiffs was detained for less than ten hours. The court held that his ordeal constituted arbitrary detention based in part on evidence that he had been brutally beaten by high ranking military officials in the course of an unlawful interrogation.248 In Xuncax, the 239 349 F. Supp. 2d 1258, 1326 (N.D. Cal. 2004). The court did not state whether all of these factors were necessary to bring a claim of arbitrary detention, only that the combination of these facts was sufficient. 240 456 F. Supp. 2d 457, 466 (S.D.N.Y. 2006). 241 198 F. Supp. 2d 1322 (N.D. Ga. 2002). 242 Id. at 1349-50. 243 Id. at 1349. 244 978 F. Supp. 1078, 1091-94 (S.D. Fla. 1997). 245 Id. at 1094. 246 901 F. Supp. 330, 330 (S.D. Fla. 1994). 247 886 F. Supp. 162, 170 (D. Mass. 1995). 248 Paul v. Avril, 901 F. Supp. 330, 333 (S.D. Fla. 1994).

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court found that the plaintiffs had been detained and tortured for periods of time ranging from 14 hours to a few days,249 and held that plaintiffs’ claims for arbitrary detention “constitute[d] fully recognized violations of international law.”250 In none of these examples were the plaintiffs transferred to lawful authorities for prosecution. In other cases, detentions lasted substantially longer. In Forti and Martinez-Baca, the detentions were for approximately four years,251 and in Abebe-Jiri v. Negewo they ranged from three months to three years.252 In these latter cases, the courts defined the tort as prolonged arbitrary detention. Section 702 of the Restatement (Third) likewise lists “prolonged” arbitrary detention as the violation of international law. However, most of the human rights instruments and most of the cases omit a requirement that the detention be prolonged.253 Even the cases defining the tort as “prolonged” either assume that arbitrary detention—even for a very short period—is an international law violation or do not discuss the question. In Forti I, the court, citing a number of U.S. cases, found “sufficient consensus to evince a customary international human rights norm against arbitrary detention.”254 Two cases have rejected claims for arbitrary detention on grounds that the claims did not satisfy the international definition. In Aldana v. Fresh Del Monte Produce, Inc., the court held that an eight-hour detention of a labor unionist by a non-governmental security force did not constitute arbitrary detention.255 The court primarily focused on the “egregiousness” of the conduct and determined 249

Xuncax v. Gramajo, 886 F. Supp. 162, 169-71 (D. Mass. 1995). Id. at 184. 251 Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541-42 (N.D. Cal. 1987); MartinezBaca v. Suarez-Mason, Civ. No. 87-2057 (N.D. Cal. April 22, 1988). 252 72 F.3d 844 (11th Cir. 1996). 253 Id. See also Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1350 n.36 (N.D. Ga. 2002). In Hilao v. Estate of Marcos, 103 F.3d 789, 795 (9th Cir. 1996), the court held that the plaintiffs’ claims fell within the definition of prolonged arbitrary detention where one plaintiff was put in solitary confinement for about six years and another was held under house arrest for several years without charges ever being filed. Id. 254 Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (citing Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787, 795-98 (D. Kan. 1980), aff’d, 654 F.2d 1382 (10th Cir. 1981); De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985); Da Yen v. Kissinger, 528 F.2d 1194, 1201 n.13 (9th Cir. 1975)). 255 305 F. Supp. 2d 1285, 1295-96 (S.D. Fla. 2003). 250

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that the eight-hour detention did not rise to the level of such conduct.256 In another case, Martinez v. City of Los Angeles, the plaintiff was arrested in Mexico based on false information supplied by the Los Angeles police department and detained for 59 days for a murder that he did not commit.257 The court determined that Martinez did not meet the definition of arbitrary detention because he was arrested and detained pursuant to a valid Mexican arrest warrant, brought before a judge within 72 hours of his arrest, and given multiple opportunities to consult with his family and attorney.258 Although not yet decided by a federal court, a claim of arbitrary arrest, like arbitrary detention, should trigger ATS jurisdiction. Arbitrary arrest is prohibited by most international human rights agreements.259 The Restatement (Third) makes clear that it is a violation of international law for a state to practice a consistent pattern of arbitrary arrests.260 In Velasquez Rodriguez, the Inter-American Court of Human Rights ruled that a “disappearance” violated several rights guaranteed by the American Convention on Human Rights, including the right to be free from arbitrary arrest.261 7.

Cruel, Inhuman, or Degrading Treatment

Several courts have held that claims of cruel, inhuman, or degrading treatment (CIDT) trigger ATS jurisdiction, but others have disagreed, finding that the violation is not sufficiently well-defined to meet the ATS standard.262 256

Id. at 1296.

257

141 F.3d 1373, 1376 (9th Cir. 1998).

258

Id.

259

See, e.g., UDHR, art. 9 (“No one shall be subjected to arbitrary arrest.”); ICCPR, art. 9; American Convention on Human Rights, art. 7(3). 260

RESTATEMENT (THIRD), supra note 33, § 702 cmt. m.

261

1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (Judgment of July 29, 1988), 28 I.L.M. 291, reprinted in 9 HUM. RTS. L.J. 245 (1988). 262 Compare Taveras v. Taveras, 397 F. Supp. 2d 908, 915 (S.D. Ohio 2005) (post-Sosa decision citing Sosa and concluding that the law of nations prohibited CIDT); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1181 (C.D. Cal. 2005) (finding CIDT claims actionable under the ATS); Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 337 (S.D.N.Y. 2005), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (same); Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1321 (N.D. Cal. 2004) (same); Tachiona v. Mugabe, 216 F. Supp. 2d 262, 281 (S.D.N.Y. 2002), rev’d on other grounds by 386 F.3d 205 (2d Cir. 2004) (same); Jama v. I.N.S., 22 F. Supp. 2d 353, 363 (D.N.J. 1998) (same); Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (same), with Aldana v. Del Monte Fresh

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The problem arises in part from the fact that CIDT is often defined in comparison to torture, as in the widely ratified Convention Against Torture: Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.263 Several international instruments prohibit torture and CIDT in a single provision, without articulating the difference between the two. The ICCPR, for example, states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”264 Some sources rest the distinction between CIDT and torture on the degree of suffering inflicted, stating that torture is aggravated mistreatment, causing very serious and cruel suffering.265 Others point to the special purposes required by the definition of torture, while CIDT includes the infliction of suffering for any reason.266 The unjustified physical and mental suffering caused by CIDT Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (holding that CIDT claims were not actionable under the ATS); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1543 (N.D. Cal. 1987) (same). 263 Convention Against Torture, art. 16(1). See Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 80 (1978) (CIDT refers to less readily cognizable forms of what might otherwise be recognized as torture); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 436-38 (S.D.N.Y. 2002) (viewing CIDT as conceptually linked to torture but not as well-defined, and noting that it is difficult to determine the line between CIDT and torture). See also Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1287 (11th Cir. 2005) (stating that there is a close relationship between torture and CIDT). 264

ICCPR, art. 7. The UDHR contains identical language in Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 265

Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, S. EXEC. REP. NO 101-30, at 13 (1990) (“[T]orture is at the extreme end of cruel, inhuman and degrading treatment.”). See Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 65-67, ¶ 167 (1978) (the suffering inflicted by torture is of a greater intensity and cruelty than CIDT and a greater stigma attaches to it); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1(2) (1976) (“Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”). 266 See J.H. BURGERS & H. DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE 148, 150 (1988) (“Unlike in the definition of torture . . . the purpose of the act

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includes the creation of “a state of anguish and stress by means other than bodily assault.”267 Degrading treatment is that which grossly humiliates a person before others or forces the person to act against his/her will or conscience,268 or incites fear, anguish, or inferiority capable of humiliating and debasing a person and attempting to break his/her moral resistance.269 Whether treatment is cruel, inhuman, or degrading depends upon an assessment of the facts of a concrete case,270 including the specific conditions and duration, the goals of the perpetrators, and the effects on the victim.271 While the outer limits of what constitutes CIDT may not be specifically defined, CIDT claims will be actionable if claims fall within a core norm that is sufficiently defined to meet the the Sosa standard. Sosa cited the law of nations definition of piracy in United States v. Smith272 as an example of the level of specificity required by the ATS, recognizing piracy as one of the “historical paradigms familiar when § 1350 was enacted.”273 In Smith, the Court expressly acknowledged a “diversity of definitions” of piracy, but held that all agreed on a core that indubitably constituted piracy: robbery or forcible depredations upon the sea.274 Under Sosa, a court must determine whether the conduct at issue clearly falls within a prohibition, not whether every peripheral aspect of that norm is fully defined and agreed upon. is irrelevant in determining whether or not the act should be considered to constitute cruel, inhuman or degrading treatment.”). 267 P. VAN DIJK & G. VAN HOOF, THEORY AND PRACTICE OF EUROPEAN CONVENTION ON HUMAN RIGHTS 228 n.75 (1990). 268 Id. at 228 n.73. 269 Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 65-67, ¶ 167 (1978). 270 This fact-based evaluation is comparable to applying the evolving standard of cruel and unusual punishment under the Eighth Amendment of the United States Constitution. See, e.g., Atkins v. Virginia, 536 U.S. 304 (2002); Wells v. Franzen, 777 F.2d 1258 (7th Cir. 1985); Medcalf v. Kansas, 626 F. Supp. 1179 (D. Kan. 1986). 271 See, e.g., Tyrer Case, 26 Eur. Ct. H.R. (ser. A) 15, ¶ 30 (1978) (distinctive element of degradation is degree of humiliation adjudged according to circumstances of individual case); Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 65-67, ¶¶ 166-68 (1978) (minimum level of severity required to determine violation depends on circumstances of particular case including duration of treatment and physical and mental effects); BURGERS & DANELIUS, supra note 265, at 70, 122; VAN DIJK & VAN HOOF, supra note 267, at 232. 272 18 U.S. (5 Wheat) 153, 163-80 (1820). 273 Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 274 United States v. Smith, 18 U.S. (5 Wheat) 153, 161 (1820).

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The first court to consider CIDT under the ATS twice rejected the claim. Forti v. Suarez-Mason (Forti I) dismissed a CIDT claim.275 Forti II reconsidered but affirmed that ruling, concluding that the violation was not definable in the absence of “anything even remotely approaching universal consensus” as to what constitutes CIDT.276 Xuncax v. Gramajo, however, the next case to analyze the requirements for a CIDT claim,277 recognized that the ATS does not require a universally accepted definition of all of the conduct that might constitute CIDT, if the acts before the court clearly fall within a widely accepted definition: It is not necessary that every aspect of what might comprise a standard such as “cruel, inhuman or degrading treatment” be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law, any more than it is necessary to define all acts that may constitute “torture” or “arbitrary detention” in order to recognize certain conduct as actionable misconduct under that rubric.278 In Xuncax, the court carefully analyzed the abuses suffered by the plaintiffs and found that the following acts constituted CIDT: causing plaintiffs to witness the torture or severe mistreatment of an immediate relative and to watch soldiers ransack their homes and threaten their families; bombing them from the air; and throwing a grenade at them.279 Doe v. Liu Qi expressly adopted the Xuncax approach280 and noted: “The fact that there may be doubt at the margins—a fact that inheres in any definition—does not negate the essence and application of that definition in 275

672 F. Supp. 1531, 1543 (N.D. Cal. 1987). Forti v. Suarez-Mason, 694 F. Supp. 707, 711-12 (N.D. Cal. 1988) (on reconsideration). 277 Two additional cases upheld CIDT claims without identifying the specific acts which constituted CIDT. Abebe-Jira v. Negewo, 72 F.3d 844, 847-48 (11th Cir. 1996); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993). 278 Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995). 279 Id. at 187-89. The judge relied in part on The Greek Case, Y.B. Eur. Conv. H.R. 186, 461-65 (1969) in determining that these acts violated the prohibition on CIDT. On the other hand, the judge rejected plaintiffs’ claim that “constructive expulsion” constituted CIDT. Id. 280 349 F. Supp. 2d 1258, 1322 (N.D. Cal. 2004) (quoting Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995)). 276

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clear cases.”281 Liu Qi held that sexual abuse suffered by one of the plaintiffs was sufficient to constitute CIDT and satisfy the Sosa standard.282 The Xuncax/Liu Qi approach has been used by other courts with mixed results. In Mujica v. Occidental Petroleum Corp., for example, the court applied the standard to find that the claims did not satisfy the requirement of a core CIDT violation.283 Mujica dismissed CIDT claims based on death threats and “constructive expulsion” (i.e., plaintiffs alleging that they were forced to relocate because of threats of violence). The court analogized the plaintiffs’ claims to an action for intentional infliction of emotional distress and determined that such claims were not sufficient to constitute CIDT. In Wiwa, the court held that several abuses constituted CIDT, including targeting a particular plaintiff and forcing that plaintiff into exile under credible fear of arbitrary arrest, torture and death; trying to extort the plaintiff to take certain actions to save his brother’s life; and, beating another plaintiff and destroying her property.284 As a practical matter, courts recognizing CIDT claims often use it to address a claim based on clearly wrongful behavior that does not otherwise fall into a specific category like torture or genocide. The egregiousness of the alleged acts is one key to presenting a CIDT claim. In Jama v. I.N.S., alien asylum seekers sued the Immigration and Naturalization Service (INS), claiming that they were subject to mental and physical abuse while in detention.285 The court upheld ATS jurisdiction over allegations of “gross mistreatment, not of criminals or persons accused of crime, but rather of persons who have committed no crime but are awaiting a decision on their applications for 281

Id. Id. at 1325 (citing Jama v. I.N.S., 22 F. Supp. 2d 353, 358-59 (D.N.J. 1998)). This Jama decision upheld the CIDT claims of female plaintiffs forced to submit to sexual assault as a pre-condition for contacting their lawyers by telephone and of male and female detainees subject to inappropriate touching. In a later, post-Sosa decision, Jama v. U.S.I.N.S., 343 F. Supp. 2d 338, 360-61 (D.N.J. 2004), the court dismissed claims against the individual guards but upheld claims against the corporation that operated the prison and its officials. See discussion in the following paragraph and infra text at notes 379380. 283 381 F. Supp. 2d 1164, 1183 (C.D. Cal. 2005). 284 Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, at * 21-27 (S.D.N.Y. Feb. 22, 2002). 285 343 F. Supp. 2d 338, 361 (D.N.J. 2004). 282

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asylum.”286 The court concluded: “The law of nations as evidenced in the various conventions, treaties, declarations and other sources cited by the Jama plaintiffs can be said to have reached a consensus that the inhumane treatment of a huge number of persons accused of no crime and held in confinement is a violation of the law of nations.”287 Mehinovic v. Vuckovic held that severe beatings constituted CIDT because they degraded and humiliated the plaintiffs.288 Estate of Cabello v. Fernandez-Larios also upheld a CIDT claim, finding CIDT to be prohibited by customary international law.289 However, Aldana v. Del Monte Fresh Produce, N.A., Inc. dismissed an ATS action for CIDT, emphasizing that the Supreme Court had said that “federal courts should exercise ‘great caution’ when considering new causes of action, and maintain ‘vigilant doorkeeping . . . thus [opening the door] to a narrow class of international norms [recognized] today.’”290 Aldana rejected the reasoning of Mehinovic and Cabello because they both relied on the ICCPR, and the ICCPR does not “create obligations enforceable in the federal courts.”291 The Aldana court appears to have misunderstood the relevance of the ICCPR as evidence that a prohibition constitutes a customary international law norm and commands widespread acceptance, as required by Sosa.292 286

Id.

287

Id.

288

198 F. Supp. 2d 1322, 1348 (N.D. Ga. 2002).

289

157 F. Supp. 2d 1345, 1361 (S.D. Fla. 2001), aff’d on other grounds, 402 F.3d 1148, 1161 (11th Cir. 2005). 290

416 F.3d 1242, 1247 (11th Cir. 2005) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004)). 291 Id. (quoting Sosa’s statement that the ICCPR “did not ‘create obligations enforceable in the federal court.’ ” Sosa v. Alvarez-Machain, 542 U.S. 692, 755 (2004)). 292

The Eleventh Circuit denied the plaintiffs’ petition for rehearing in Aldana, but Circuit Judge Barkett wrote a dissenting opinion to the denial of rehearing. Aldana v. Del Monte Fresh Produce, N.A. Inc., 452 F.3d 1284 (11th Cir. 2006). Judge Barkett outlined the history of CIDT litigation under the ATS and concluded: Had the panel followed the required Sosa analysis, it would have seen that the specific content requirement of Sosa is not one of categorical specificity—it does not require defining every possible instance of cruel, inhuman, or degrading treatment or punishment, but rather compels a determination of whether the facts alleged in a particular situation sit within the universal prohibition against cruel, inhuman, or degrading treatment or punishment.

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Courts have also considered the overlap between CIDT and federal constitutional standards. The Senate attached a reservation to two international treaties that prohibit CIDT, the ICCPR and the Convention Against Torture. The reservation states that the United States “considers itself bound” by the prohibition against CIDT “to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”293 Addressing the significance of the reservation, the court in Xuncax v. Gramajo recognized that the ATS requires application of the international definition of a tort, not the U.S. constitutional standard; the court found that the reservation helped identify a core of the norm that is of universal acceptance and therefore triggers ATS jurisdiction.294 8.

Terrorism

Terrorism was rejected as the basis for an ATS claim in one of the earliest human rights cases brought under the statute, Tel-Oren v. Libyan Arab Republic.295 The case arose out of a 1978 attack in Israel, when members of the Palestinian Liberation Organization (PLO) hijacked a bus and took the passengers hostage. In a confrontation with the Israeli police, PLO members turned their guns on the hostages and blew up the bus, killing 34 and wounding 75. Although the D.C. Circuit court dismissed the plaintiffs’ claims, the judges issued three separate opinions, each providing different grounds for dismissal. Judge Bork rejected the Fila´rtiga interpretation of the ATS, while Judge Robb would have found the claims to be non-justiciable under the political question doctrine. Judge Edwards accepted the Fila´rtiga doctrine, but concluded that the international community had not agreed upon a universal prohibition of terrorism by private actors sufficient to support an ATS claim. Much has changed since the Tel-Oren decision. First, as described in Chapter 6, civil claims for terrorism can now be litigated under the Anti-Terrorism Act, which provides a cause of action for acts of international terrorism, defined as violent criminal acts committed outside of the United Id. at 1288 (citing Sosa v. Alvarez-Machain 542 U.S. 692, 735-36 (2004)). The approach outlined by Circuit Judge Barkett is analogous to the Xuncax/Liu Qi approach. 293 Reservation to the ICCPR, S. EXEC. REP. NO. 102-23, at 22 (1992); Reservation to the Convention against Torture, S. EXEC. REP. NO. 101-30, at 13 (1990). 294 886 F. Supp. 162, 187 (D. Mass. 1995). 295 726 F.2d 774 (D.C. Cir. 1984).

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States or “transcend[ing] national boundaries,” if the acts “appear to be intended” to intimidate or coerce civilians or a government.296 Second, terrorism claims can be litigated as more specific violations of international law, such as aircraft hijacking, hostage-taking, or extrajudicial execution. For example, in a series of cases filed by survivors of the September 11, 2001, attacks, family members of victims, and insurance companies, the district court ruled that a claim based on aircraft hijacking triggered ATS jurisdiction.297 Similarly, in Mwani v. Bin Laden, plaintiffs brought suit against Al Qaeda and Osama Bin Laden for damages sustained in the 1998 truck bomb attack against the U.S. Embassy in Nairobi, Kenya, which killed more than 200 people and wounded more than 4,000 others.298 The D.C. Circuit allowed plaintiffs’ ATS claims to proceed based in part on the fact that the attack targeted U.S. diplomatic personnel inside the embassy.299 Third, claims against some foreign states and their employees can be filed under the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act.300 The exception authorizes claims against five states—Cuba, Iran, North Korea, Sudan, and Syria—for torture, summary execution, aircraft hijacking, and hostage-taking. Finally, the basic premise of Judge Edwards’ evaluation of a terrorism claim—that there is no international consensus on the prohibition of terrorism—is no longer accurate. Despite some ongoing areas of disagreement, the international community has reached a general consensus about the basic definition of terrorism. The Security Council, for example, has condemned: criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury . . . with the purpose to provoke a state of terror in the general public or in a group of persons or particular 296

18 U.S.C. §§ 2331, 2333. In Re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765, 826 (S.D.N.Y. 2005); In Re Terrorist Attacks of September 11, 2001, 392 F. Supp. 2d 539, 565 (S.D.N.Y. 2005). 298 417 F.3d 1 (D.C. Cir. 2005). 299 Id. at 14 n.14 (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 716 (2004), and noting that Sosa recognized “assault against an ambassador” as one of the 18th-century paradigms underlying the ATS). 300 28 U.S.C. § 1605(a)(7). See Chapter 5. 297

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persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.301 The General Assembly stated that it “strongly condemns all acts, methods and practices of terrorism in all its forms and manifestations as criminal and unjustifiable, wherever and by whomsoever committed,” and noted: that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.302 A U.N. committee is close to agreement on a comprehensive convention on terrorism, which includes the following definition: Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or (c) Damage to property, place, facilities or systems referred to in paragraph 1(b) of the present article resulting or likely to result in major economic loss; when the purpose of the conduct, by its nature and context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.303 A claim based on an act that falls within these international definitions should trigger ATS jurisdiction as a violation of a widely accepted, clearly defined norm. 301

S.C. Res. 1566, art. 3 (2004). G.A. Res. 59/46, arts. 1, 2 (2004). 303 U.N. General Assembly Draft Comprehensive Convention Against International Terrorism, art. 1. 302

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9.

Religious Freedom

Many cases that involve religious freedom claims are brought not under the ATS, but under the Religious Freedom Restoration Act (RFRA).304 RFRA bars government actions that substantially burden a person’s religious free-exercise rights, unless the burden furthers a compelling government interest and is the least restrictive means of furthering that interest. The statute provides a civil cause of action for damages. Although the Supreme Court held it unconstitutional as applied to state and local governments,305 RFRA still limits the actions of the federal government and those working under color of law.306 In Jama v. I.N.S., for example, a case brought by immigrant detainees held in an abusive detention facility, the court held that plaintiffs could bring suit under RFRA against guards who were acting under color of law with respect to their work for the INS, even though the guards were employed by a private company.307 More recently, in Rasul v. Rumsfeld, plaintiffs who were previously detained at Guantanamo brought suit under the RFRA alleging that representatives of the U.S. government had flushed the Koran down the toilet and forced plaintiffs to shave their beards against their Muslim faith.308 The court rejected the defendants’ argument that the RFRA did not extend to actions taken in Guantanamo, and found that the plaintiffs had alleged acts that substantially burdened their freedom to exercise their religion and that fell squarely within prohibited government conduct under the RFRA.309 Claims of violations of religious freedom have been raised in ATS cases, but as of early 2007 no court had directly addressed them. Most such claims have been dismissed on other grounds or subsumed into another violation of international law such as genocide or crimes against humanity.310 For example, Falun Gong practitioners have filed several ATS claims against Chinese 304

42 U.S.C. § 2000bb-1. City of Boerne v. Flores, 521 U.S. 507 (1997). 306 Gonzales v. O Centro Espı´rita Beneficente Unia ˜ o do Vegetal, 546 U.S. 418 (2006). 307 343 F. Supp. 2d 338, 372 n.23 (D.N.J. 2004). 308 433 F. Supp. 2d 58 (D.D.C. 2006) (appeal pending). 309 Id. at 69. 310 See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1366 (S.D. Fla. 2001); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1352 (N.D. Ga. 2002). Claims of religious freedom violations were unsuccessful when pled as part of a claim of cultural genocide, because the court held that cultural genocide was not cognizable under the ATS. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999). 305

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government officials alleging violations of their religious rights, framed as violations of “freedom of conscience, movement, and religion,”311 “freedom of thought, conscience, and religion,”312 and “freedom of religion and belief.”313 The two cases filed against Jiang Zemin, the president of China, were dismissed based on his immunity from suit. In a third case, the court in Doe v. Liu Qi recognized the international right to freedom of religion and belief, but noted that the exercise of that right was subject to some restrictions: [T]he claims alleging . . . interference with freedom of religion and belief require an assessment of the government’s justification for actions taken against the Falun Gong, including the arrest and detention of their practitioners[] and [limits on their] supporters’ freedoms. The right to freedom of religion and belief protected under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) is subject to restrictions that are “necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” General Comment 22 under Article 18 of the ICCPR, ¶ 8. As noted above, the [Chinese government] asserts such justification in defense of its official actions outlawing the Falun Gong.314 The court dismissed the religious freedom claims in part because an evaluation of the validity of China’s claim that the restrictions were justified would trigger the protection of the Foreign Sovereign Immunities Act (FSIA) and/or the act of state doctrine.315 In Bigio v. Coca Cola Co., the court held that a claim based on religious discrimination required a showing of state action.316 Plaintiffs in Bigio alleged that Coca Cola had acquired property knowing that the Egyptian government had illegally confiscated the land from the Bigio family because they were Jewish. The court dismissed the ATS claim because it found that the corporation was not acting under color of law.317 311

Wei Ye v. Jiang Zemin, 383 F.3d 620, 622 (7th Cir. 2004). Plaintiffs A, B, C, D, E, F v. Zemin, 282 F. Supp. 2d 875, 878 (N.D. Ill. 2003). 313 Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1268 (N.D. Cal. 2004). 314 Id. at 1308. 315 Id. at 1311. The Doe v. Liu Qi holding as to the FSIA is discussed in Chapter 5; its holding as to the act of state doctrine is discussed in Chapter 13. 316 239 F.3d 440 (2d Cir. 2000), rev’d on other grounds, 448 F.3d 176 (2d Cir. 2006). 317 Id. at 448-49. 312

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The Geneva Conventions offer an as-yet unexplored option for religious discrimination claims against private defendants, if the claims arise during an armed conflict. Common Article 3 of the Geneva Conventions requires that civilians be “treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.”318 Kadic v. Karadzic noted that that provision applies to all parties, not only state actors.319 Doe v. Islamic Salvation Front also drew on this analysis, using Common Article 3 to support a claim against a member of a political group allegedly responsible for crimes against humanity during a civil war.320 Common Article 3 could therefore provide a framework for religious freedom claims against private actors under the ATS. 10. Forced Exile and Forced Relocation

Two pre-Sosa ATS cases recognized forced exile or forced relocation as a component of cruel, inhuman, or degrading treatment (CIDT) or crimes against humanity. In Wiwa v. Royal Dutch Petroleum Co., the court held that specifically targeting individuals and forcing them to flee their country is a form of CIDT, actionable under the ATS.321 The Wiwa plaintiff alleged that “he was forced to flee Nigeria under credible fear of ‘arbitrary arrest, torture and death,’ at the hands of the Nigerian military.”322 In Kiobel, a post-Sosa decision, the same judge emphasized that Wiwa held that forced exile constituted a form of CIDT, not a violation actionable independently under the ATS; she then dismissed the independent forced exile claim in light of Sosa.323 In Mujica v. Occidental Petroleum Corp., the court held that forced displacement as part of a widespread and systematic attack against civilians stated an ATS claim as a crime against humanity.324 The Statute of the International Criminal Court expressly includes “forcible transfer of population” as a crime against humanity.325 318

The first few articles of the four Geneva Conventions of 1949 are repeated in each and are known as “common articles.” 319 70 F.3d 232, 243 (2d Cir. 1995). 320 993 F. Supp. 3 (D.D.C. 1998), rev’d on other grounds, 257 F. Supp. 2d 115 (D.D.C. 2003). 321 Civ. No. 96-386, 2002 U.S. Dist. LEXIS 3293, at * 21-22 (S.D.N.Y. Feb. 22, 2002). 322 Id. at * 26. 323 Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 460 (S.D.N.Y. 2006). 324 381 F. Supp. 2d 1164 (C.D. Cal. 2005). 325 Statute of the International Criminal Court, art. 7(1)(d).

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In the context of deportation challenges, courts have recognized the right to be free from exile as part of customary international law.326 There is also support in the jurisprudence of international tribunals for holding that forced exile is a crime against humanity.327 Commentators have also argued that forced relocation is an independent violation of the law of nations.328 In an early case, Xuncac v. Gramajo, the court distinquished “forced exile” from “constructive exile,” when a person flees because of fear brought about by acts committed on others.329 Xuncax held that constructive exile was not actionable under the ATS. 11. Freedom of Association

ATS claims for violation of freedom of association (or the right of peaceful assembly) arise in the context of both political association and labor organizing. One post-Sosa decision rejected the claim as part of a general rejection of a claim for violations of the “rights to life, liberty, security and association.”330 In that case, plaintiffs alleged that the “beatings, shooting, arrests and detention of Plaintiffs by military personnel during peaceful demonstrations . . . constitute violations of the right to life, liberty and security of person, and [the] rights to peaceful assembly and association.”331 With no discussion, the court accepted the defendants’ argument that “[t]here is no particular or universal understanding of the civil and political rights” covered by these claims and that the claims are therefore not actionable under the Sosa standard.332 326 See, e.g., Maria v. McElroy, 68 F. Supp. 2d 206, 233-23 (E.D.N.Y. 1999), abrogated on other grounds, Restrepo v. McElroy, 369 F.2d 627 (2d Cir. 2004); Mojica v. Reno, 970 F. Supp. 130, 147 (E.D.N.Y. 1997) (citing multiple international sources as evidence that the prohibition of arbitrary exile or expulsion is an element of international human rights law that Congress must follow “absent an overriding national policy”). 327 See, e.g., Prosecutor v. Simic et al., Judgment, Case No. IT-95-9-T, ¶ 123 (Oct. 17, 2003) (“any forced displacement is by definition a traumatic experience which involves abandoning one’s home, losing property and being displaced under duress to another location”). 328 See, e.g., Marco Simons, The Emergence of a Norm Against Arbitrary Forced Relocation, 34 COLUM. HUM. RTS. L. REV. 95 (2002), and sources cited. 329 886 F. Supp. 162, 189 (D. Mass. 1995). 330 Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y. 2006). 331 Id. 332 Id.

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Pre-Sosa, several courts applying the “specific, universal and obligatory” test found claims based on the freedom of association to be justiciable under the ATS.333 In each successful case, plaintiffs alleged state violence against peaceful assembly. As the court stated in Wiwa v. Royal Dutch Petroleum Co.: “The rights to peaceful assembly and expression include the right not to be subjected to the use of force or violence by police or military while engaged in peaceful protest.”334 The plaintiffs in Wiwa alleged that killings, torture, and other mistreatment had been used to suppress peaceful political activity.335 In Tachiona v. Mugabe, the court relied on a wide variety of international sources to hold that the freedoms of political association, speech, beliefs, and participation are actionable under the ATS.336 Tachiona acknowledged that “under certain exigencies threatening safety, security or public order, the state may justifiably impose reasonable restraints” on the exercise of these freedoms.337 However, the court emphasized that these exceptions are strictly construed and limited to reasonable constraints338 ; it found no evidence of a legitimate justification in that case.339 In the labor context,340 ATS claims have relied on a general right of association and also on international norms that specifically address the right to organize collectively. Estate of Rodriquez v. Drummond Co. involved allegations that a U.S. company was complicit in the murders and kidnaping of trade union activists in Colombia.341 The court found that these acts violated the jus 333 See Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1263 (N.D. Ala. 2003) (finding the claim actionable as a “specific, universal and obligatory” violation of international law); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 410 n.25 (S.D.N.Y. 2002) (same); Wiwa v. Royal Dutch Petroleum, Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, at *5 (S.D.N.Y. Feb. 22, 2002) (same). 334 Id. at *11. 335 Id. at *36. 336 234 F. Supp. 2d 401, 423-24 (S.D.N.Y. 2002). 337 Id. at 433. 338 Id. 339 Id. 340 For discussions of the right of association in the labor context, see Melissa Torres, Labor Rights and the ATCA: Can the ILO’s Fundamental Rights Be Supported, 37 COLUM. J.L. & SOC. PROB. 447, 469-73 (2004); Justin D. Cummins, Invigorating Labor: A Human Rights Approach in the United States, 19 EMORY INT’L L. REV. 1, 31-32 (2005) (same). 341 256 F. Supp. 2d, 1250, 1260, 1262-64 (N.D. Ala. 2003). See also Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1348 (S.D. Fla. 2003), where the complaint

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cogens norms against murder and torture; it also held that violations of the rights to associate and organize triggered ATS jurisdiction.342 In Aldana v. Fresh Del Monte Produce, Inc., however, the court declined to follow Drummond, holding that plaintiffs had not shown a customary international law right of association cognizable through the ATS and noting that recognizing such a cause of action could transform U.S. courts into “a forum for all labor disputes worldwide.”343 12. Right to Life

References to an internationally recognized “right to life” can be found in a number of international instruments, most notably in the Universal Declaration of Human Rights (UDHR)344 and the International Covenant on Civil and Political Rights (ICCPR).345 As the cases described below make clear, the courts generally recognize that the right to life is a universally accepted norm and often use it to reinforce a finding that summary execution violates international law. However, some courts have concluded that the norm is insufficiently definite to support an ATS claim for other violations of the right to life. This section should be read in conjunction with the discussion of extrajudicial killing or summary execution in this chapter, Section D.2. Several courts have found the right to life to be violated where the conduct alleged included summary execution. Wiwa v. Royal Dutch Petroleum Co., for example, recognized the existence of a “right to life, liberty, and personal alleged the denial of the “rights to associate and organize union activity in violation of the ATCA,” but the court found subject matter jurisdiction over some defendants without addressing the specific issues of the right to associate or organize. See also Sandra Coliver, Jennifer M. Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 EMORY L. REV. 169, 217 n.146 (2005), citing an unpublished opinion in Manzanarez v. C & Y Sportswear, which held that a violation of the right to organize that did not involve physical violence did not satisfy the ATS standard. 342 Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1264 (N.D. Ala. 2003). 343 305 F. Supp. 2d 1285, 1299 (S.D. Fla. 2003), rev’d on other grounds, 416 F.3d 1242 (11th Cir. 2005). 344 “Everyone has the right to life, liberty and security of person.” UDHR, art. 3. 345 “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” ICCPR, art. 6(1).

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security” under customary international law,346 encompassing “the right not to be subjected to arbitrary detention, summary execution, and other abusive treatment by governments.”347 The court held that the beating and shooting of a peaceful protestor violated this norm but that cursory allegations of arbitrary detention did not.348 Estate of Cabello v. Ferna´ndez-Larios arose out of a Chilean general’s execution of a political opponent.349 The court held, without explaining, that the conduct alleged violated the “law of nations,” including the right to life as recognized in the ICCPR.350 In Xuncax v. Gramajo, citizens of Guatemala sued that country’s former minister of defense for acts of violence committed against them and their villages.351 The court noted that “every instrument or agreement that has attempted to define the scope of international human rights has ‘recognized a right to life coupled with a right to due process to protect that right.’”352 These cases suggest that there is considerable overlap between “the right to life” and claims for extrajudicial killing or other abuses. Other courts have assumed the existence of a right to life without explaining its scope.353 In Doe v. Liu Qi, Falun Gong practitioners claimed that Chinese officials had violated their right to life.354 The court assumed that the norm was actionable under the ATS, but only on behalf of victims who had been killed, not for lesser infringements.355 Presbyterian Church of Sudan v. Talisman Energy, Inc. held that corporations may be held liable for violations of the right to life, as one of the basic human rights that corporations are obligated to 346

Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, *33-37 (S.D.N.Y. Feb. 22, 2002). Id. at *33. But see Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 461 (S.D.N.Y. 2006) (appeal pending) (dismissing claims for “violations of the right to life, liberty and security of person” because there is no “particular or universal understanding” of the scope of these rights, and, therefore, they do not satisfy the Sosa standard). 348 Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, *35-36 (S.D.N.Y. Feb. 22, 2002). 349 157 F. Supp. 2d 1345, 1349 (S.D. Fla. 2001). 350 Id. at 1366, 1368. 351 886 F. Supp. 162, 185 (D. Mass. 1995). 352 Id. (citing an affidavit submitted by international law scholars). 353 Tachiona v. Mugabe found support for such a right in the ICCPR, the UDHR, and the U.S. Foreign Assistance Act of 1961, which bars assistance to foreign governments that, inter alia, engage in a flagrant denial of the right to life, liberty, and the security of person. 234 F. Supp. 2d 401, 432 (S.D.N.Y. 2002) (citing 22 U.S.C. § 2151n(a)), rev’d on other grounds, 386 F.3d 205 (2d Cir. 2004). 354 349 F. Supp. 2d 1258, 1328 n.45 (N.D. Cal. 2004). 355 Id. 347

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respect.356 Forti v. Suarez-Mason relied on the internationally recognized right to life in concluding that there is a universal prohibition against “causing disappearance.”357 Courts have rejected the norm when attempts were made to include within it harms caused by environmental degradation. Sarei v. Rio Tinto, PLC analyzed the sources evidencing the “rights to life and health” in a suit against a mining company alleging that extraordinary pollution caused death and serious illness.358 The district court reviewed a wide range of international law sources that recognize a right to life and health, but it held that those sources did not adequately clarify what constituted a violation of the norm.359 The court concluded that the right to life did not amount to a prohibition against environmental destruction.360 The court distinguished Xuncax v. Gramajo361 and Forti v. Suarez-Mason,362 both of which recognized a right to life in the context of political repression, rather than in the environmental context, and concluded that the alleged conduct did not violate a “specific, universal, and obligatory” norm of international law.363 Likewise, Flores v. Southern Peru Copper Corp. rejected a claim for violations of the “rights to life and health” as insufficiently definite to constitute 356

244 F. Supp. 2d 289, 318 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (“[C]orporations are obligated to respect basic human rights of individuals, such as the right to life, the right to freedom from slavery, and the right to be free from torture and cruel and inhuman treatment.”). 357 694 F. Supp. 707, 710-11 (N.D. Cal. 1988). 358 221 F. Supp. 2d 1116, 1156-60 (C.D. Cal. 2002), reversed on other grounds, 456 F.3d 1069 (9th Cir. 2006). 359 Id. at 1158-59. 360 Id. The court noted that some of the sources permitted countries to set their own environmental policies. Id. 361 886 F. Supp. 162, 184-85 (D. Mass. 1995). 362 694 F. Supp. 707, 709-10 (N.D. Cal. 1988). 363 Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1160 (C.D. Cal. 2002). The plaintiffs did not appeal the district court’s dismissal of this claim. Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *4 n.28 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. See also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 461 (S.D.N.Y. 2006) (appeal pending) (dismissing claims for “violations of the right to life, liberty and security of person” because there is no “particular or universal understanding” of the scope of these rights, and, therefore, they do not satisfy the Sosa standard).

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a rule of customary international law.364 In that case, Peruvians brought suit against a U.S. copper mining company for pollution that led to lung disease in the local community. The Second Circuit held that the international law provisions invoked by the plaintiffs as evidence of this norm failed to provide clear standards to determine what conduct would fall within the norm.365 13. Gender Violence, Sexual Violence, and Gender Discrimination a.

Gender Violence and Sexual Violence

Several courts have recognized that allegations of rape and other sexual assault trigger jurisdiction under the ATS when litigated as forms or elements of one of the violations discussed earlier in this chapter, including genocide366 ; crimes against humanity367 ; war crimes368 ; torture369 or cruel, inhuman, or 364

414 F.3d 233, 254-55 (2d Cir. 2003). Id. 366 See Section E.1, discussing Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir.1995); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 n.34 (S.D.N.Y. 2003)), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 367 In Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Dec. 21, 2004), available at www.ccr-ny.org/humanrightsbook, the court issued a default judgment which included a judgment for rape as crime against humanity. See also In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 136 (E.D.N.Y. 2005) (including rape as a crime against humanity); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, at * 27 (S.D.N.Y. Feb. 22, 2002) (same); Mehinovic v. Vukovic, 198 F. Supp. 2d 1322, 1353 (N.D. Ga. 2002) (including rape or sexual assault as crimes against humanity). See also Kelly Dawn Askin, Developments in International Criminal Law: Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, 93 AM. J. INT’L L. 97 (1999). 368 See Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995) (plaintiffs asserted that rape “committed in the course of hostilities, violate[d] the law of war”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 n.34 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending); Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at * 2 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (including rape when describing plaintiffs’ allegations of “atrocious human rights abuses and war crimes”). See also KELLY DAWN ASKIN, WAR CRIMES AGAINST WOMEN: PROSECUTIONS IN INTERNATIONAL WAR CRIMES TRIBUNALS 5 n.11 (1997) (rape recognized as war crime as early as 1474; now rises to the level of a jus cogens violation). 369 See Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Dec. 21, 2004), available at www.ccr-ny.org/humanrightsbook (default judgment included judgment for rape as a 365

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degrading treatment or punishment370 ; sexual slavery or trafficking371 ; or forced prostitution.372 Rape at sea is also an act of piracy, one of the historic paradigms upon which the ATS was based.373 To date, the vast majority of claims alleging sexual violence have been on behalf of women or girls; a claim of sexual violence against men, however, has been included as an element of torture.374 Only a few cases provide any detailed analysis on rape or other sexual violence as a justiciable claim, and they are discussed below. The use of systematic gender violence as a tool of genocide in the former Yugoslavia from 1992-1993 focused attention on the widespread and historicalform of torture); Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir.1995) (discussing “murder, rape, forced impregnation, and other forms of torture.”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 n.34 (S.D.N.Y. 2003) (appeal pending) (discussing rape as torture). See also In re Extradition of Suarez Mason, 694 F. Supp. 676, 682 (N.D. Cal. 1988) (“shock sessions were interspersed with rapes and other forms of torture”); Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2002) (“Rape can constitute torture. Rape is a form of aggression constituting an egregious violation of humanity.”). See also United States v. Bailey, 444 U.S. 394, 423 (1980) (“Such brutality [homosexual rape in prisons] is the equivalent of torture, and is offensive to any modern standard of human dignity.”); Farmer v. Brennan, 511 U.S. 825, 854 (1994) (Blackmun, J., concurring) (stating that rape within U.S. prisons is “nothing less than torture.”). International tribunals have found other forms of sexual violence besides rape to constitute torture. See, e.g., Women’s Initiatives for Gender Justice, Sexual Violence and International Criminal Law: An Analysis of the Ad Hoc Tribunal’s Jurisprudence & the International Criminal Court’s Elements of Crimes (Sept. 2005), available at http:// www.iccwomen.org/publications/resources/docs/Overview Sexual Violence and Interna tional Criminal Law.doc. 370 See discussion later in this section about sexual assault other than rape as a form of cruel, inhuman, or degrading treatment. 371 Doe v. Reddy, Civ. No. 02-05570, 2003 U.S. Dist. LEXIS 26120, at *36 (N.D. Cal. Aug. 4, 2003) (“defendant reinforced coercive conduct [of forced labor] through threats, physical beatings and sexual battery”). 372 Doe v. Bolkiah, 74 F. Supp. 2d 969 (D. Haw. 1998) (women unknowingly recruited for forced prostitution allowed to sue Sultan of Brunei; no immunity applied, since these were not official acts of state). 373 See Joseph W. Bingham, Reporter, Draft Convention and Comment, Codification of International Law: Part VI: Piracy, 26 AM. J. INT’L L. (SUPP.) 739, 743 (1932) (piracy includes “[a]ny act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property”). 374 Mehinovic v. Vukovic, 198 F. Supp. 2d 1322, 1345 (N.D. Ga. 2002) (stating that torture of plaintiffs included beatings on genitals).

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ly recurring pattern of rape in the context of armed conflict.375 In 1995, in an ATS action against Radovan Karadzic, a Bosnian Serb leader, the Second Circuit recognized rape as a form of torture, a war crime, and an act of genocide.376 A subsequent case stated that rape constitutes torture when “plaintiffs can show that these acts were committed for any reason based on discrimination and with the consent or acquiescence of a public official or other person acting in an official capacity.”377 Courts are divided on whether sexual abuse other than rape is actionable as a form of cruel, inhuman, or degrading treatment or punishment. In Doe v. Liu Qi, the court found that one plaintiff’s allegations of sexual assault constituted cruel, inhuman, or degrading treatment, citing a report of the Committee Against Torture that “specifically lists sexual abuse as a cruel act.”378 In Jama v. I.N.S., the court dismissed some claims against individual guards, finding that the allegations constituted a challenge to conditions of confinement that did not rise to the level required by Sosa.379 The Jama decision did allow international law claims to proceed against the private owner of the prison and its officers, based on the sexual abuse.380 375 Beth Stephens, Humanitarian Law and Gender Violence: an End to Centuries of Neglect?, 3 HOFSTRA L. & POL’Y SYMP. 87 (1999). 376 In Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir.1995), the court described allegations of “murder, rape, forced impregnation, and other forms of torture.” The court also provided the most detailed analysis, limited as it is, of any ATS case to date of rape as an act of genocide. Id. at 244. 377 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 326 n.34 (S.D.N.Y. 2003)), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). 378 349 F. Supp. 2d 1258, 1325 (N.D. Cal. 2004) (noting that plaintiff alleged that a police officer attempted to force his hand into her vagina while several other officers pinned her down). 379 343 F. Supp. 2d 338, 360-61 (D.N.J. 2004). The court denied a motion for summary judgment on a state law claim of sexual harassment against an individual guard, based on evidence that the female inmate was repeatedly assaulted by the guard. Id. at 383. 380 Id. at 361 (denying motion for summary judgment against the Esmor corporation and its officers). See also Taveras v. Taveras, 397 F. Supp. 2d 908, 915 n.6 (S.D. Ohio 2005), aff’d on other grounds, 477 F.3d 767 (6th Cir. 2007) (court rejected international child abduction claims but made “explicit, however, that the severity required for a finding of a law of nations [violations] would almost certainly be present if an allegation of international child abduction involved credible allegations of physical, verbal or sexual abuse”).

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International norms governing domestic or “intimate” violence against women have been the subject of heated debate, and there remains much dispute about the obligations of the state when the violence itself is carried out by a private actor.381 However, in the area of asylum law, the United States has granted refugee status based on domestic violence committed against asylum applicants while they were in their home countries.382 A growing literature on sexual violence, including rape and other gender-based violence, is exploring the development of human rights norms dealing specifically with these issues.383 Future claims might assert gender violence as an independent human rights violation, in addition to asserting it as a form of one of the other violations such as torture or a crime against humanity.384 Although plaintiffs have attempted to assert independent claims for “violence against women” and sexual violence, the only court to address these claims rejected them without analysis.385 Given that this area of law is still developing, litigants should monitor international developments and submit expert declarations on these questions. 381

See generally Rhonda Copelon, International Human Rights Dimensions of Intimate Violence: Another Strand in the Dialectic of Feminist Lawmaking, 11 AM. U.J. GENDER SOC. POL’Y & L. 865 (2003); Andreea Vesa, International and Regional Standards for Protecting Victims of Domestic Violence, 12 AM. U.J. GENDER SOC. POL’Y & L. 309 (2004). 382 Deborah Anker, Women Refugees: Forgotten No Longer?, 32 SAN DIEGO L. REV. 771 (1995). 383 Commentators remain concerned that the particular characteristics of rape and other gender violence not be lost within definitions of broader international torts. See, e.g., Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, 5 HASTINGS WOMEN’S L.J. 243 (1994). 384 See, e.g., Dean Adams, The Prohibition of Widespread Rape as a Jus Cogens Norm, 6 SAN DIEGO INT’L L.J. 357 (2005); David S. Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. & INT’L L. 219 (2005). 385 In Doe v. Exxon Mobil Corp, 393 F. Supp. 2d 20, 24 (D.D.C. 2005), the court held that plaintiffs could not bring a claim for sexual violence because “it is not sufficiently recognized under international law.” Notably, the court specifically recognized that “claims of sexual violence may be cognizable elements of such illegal conduct as torture.” The Exxon court simply cross-referenced this discussion in rejecting claims for “violence against women.”

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b.

Gender Discrimination

Discrimination based on gender is barred by virtually all of the major international human rights agreements, including the U.N. Charter, Article 1(3), the Universal Declaration of Human Rights, Article 2, and the International Covenant on Civil and Political Rights, Article 2. In addition, the Convention on the Elimination of All Forms of Discrimination Against Women had been ratified by 185 states as of 2006.386 In 1993, the final declaration of the U.N. World Conference on Human Rights confirmed that women’s rights are “an inalienable, integral and indivisible part of universal human rights” and called for “the eradication of all forms of discrimination against women, both hidden and overt,”387 a stance reaffirmed in 1995 at the Fourth World Women’s Conference.388 The extent to which the prohibition against gender discrimination has reached the level of customary international law remains in dispute. Nevertheless, it is clear that in some areas gender discrimination violates customary international law.389 In cases of violations of fundamental rights, at least, a claim based on gender discrimination should support jurisdiction under the ATS. 14. Racial Discrimination

Several courts have noted that systematic racial discrimination, as matter of state policy, constitutes a violation actionable under the ATS, satisfying the standard of a widely accepted, clearly defined violation of the law of nations.390 386

The United States signed the Convention in 1980 but has not ratified it.

387

The Vienna Declaration, World Conference on Human Rights, U.N. Doc. A/ CONF.157/23, 32 I.L.M. 1661 (1993). 388

See Fourth World Conference on Women, Platform for Action: Action for Equality, Development and Peace, Sept. 15, 1995. 389

See RESTATEMENT (THIRD), supra note 33, § 702 cmt. l (“Gender-based discrimination is still practiced in many states in varying degrees, but freedom from gender discrimination as state policy, in many matters, may already be a principle of customary international law.”). 390

See, e.g., Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (“Plaintiffs here have alleged several claims asserting jus cogens violations that form the least controversial core of modern day ATCA jurisdiction, including allegations of war crimes, crimes against humanity and racial discrimination.”); Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000); Kadic v. Karadzic, 70 F.3d 232, 240 n.3 (2d Cir. 1995); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992); Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781 (D.C. Cir. 1984).

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Racial discrimination, widely recognized as a violation of international law, is prohibited by all of the comprehensive international law instruments,391 as well as by the International Convention on the Elimination of All Forms of Racial Discrimination (Racial Discrimination Convention), one of the most widely ratified U.N. human rights treaties. Article 5 prohibits racial discrimination, defined as: any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.392 In the language of the Restatement (Third), “A state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . systematic racial discrimination.”393 The Restatement (Third) also points out that racial discrimination is “a violation of customary international law when it is practiced systematically as a matter of state policy, e.g., apartheid in the Republic of South Africa.”394 Although “[o]ccasional official practices of racial discrimination would not violate this section,” such abuses would violate other international conventions and covenants.395 In Sarei v. Rio Tinto, PLC the district court held that a claim of systematic racial discrimination imposed under color of law stated an ATS claim, holding that “it is well-settled that racial discrimination is a violation of the law of nations. Many courts, indeed, have held that practicing racial discrimination violates a jus cogens norm. . . . Clearly, a claim under the ATCA may be based on the violation of a jus cogens norm such as racial discrimination.”396 This holding was affirmed on appeal to the Ninth Circuit.397 391

See, e.g., UDHR, arts. 2, 16; U.N. CHARTER, arts. 55, 56; ICCPR, art. 2(1). Racial Discrimination Convention, art. 5. 393 RESTATEMENT (THIRD), supra note 33, § 702(f). 394 Id., § 702 cmt. i. 395 Id. 396 221 F. Supp. 2d 1116, 1152-53 (C.D. Cal. 2002). 397 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (recognizing racial discrimination as a jus cogens violation and part of “the least controversial core of modern day ATCA jurisdiction.”). 392

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Several district courts have agreed.398 No court has held that systemic racial discrimination does not meet the criteria established by Sosa for an actionable norm.399 Given the precedents in ATS litigation, the widespread condemnation of discrimination based on race or national or ethnic origin, and the customary international law status of its prohibition, systematic racial discrimination is accepted as an international law violation cognizable under the ATS. Less systematic racial discrimination should also be accepted, but the strength of such a claim would depend on the facts of a particular case. 15. Systematic Violations of Human Rights

Although the Restatement (Third) recognizes “a consistent pattern of gross violations of internationally recognized human rights” as a customary international law violation,400 no U.S. court has determined whether a violation of that norm is actionable under the ATS.401 Consistent violations of fundamental rights that are “intrinsic to human dignity” would meet this definition.402 The Restatement (Third) provides examples: 398 See, e.g., Kane v. Winn, 319 F. Supp. 2d 162, 196 (D. Mass. 2004) (noting that racial discrimination claims trigger ATS jurisdiction); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 305 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (same); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 439 (S.D.N.Y. 2002); Taveras-Lopez v. Reno, 127 F. Supp. 2d 598, 609 (M.D. Pa. 2000) (same); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 371 (E.D. La. 1997) (same); Doe v. Unocal, 963 F. Supp. 880, 890 (C.D. Cal. 1997) (same); Hirsh v. State of Israel, 962 F. Supp. 377, 381 (S.D.N.Y. 1997); Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1982) (same). 399 In re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004) (appeal pending), however, held that ATS claims based on racial discrimination failed because the plaintiffs failed to allege state action. 400 RESTATEMENT (THIRD), supra note 33, § 702 cmt. g. 401 In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7, 115, 132 (E.D.N.Y. 2005), found that the use of herbicides by the U.S. army in Vietnam did not constitute a consistent pattern of gross violations of internationally recognized human rights. 402 Id. See id., n.10 (“ ‘Consistent pattern of gross violations’ generally refers to violations of those rights that are universally accepted and that no government would admit to violating as state policy. . . . It would be difficult to claim a gross violation of a right whose definition and application are disputed.”).

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These include, for example, systematic harassment, invasions of the privacy of the home, arbitrary arrest and detention (even if not prolonged); denial of fair trial in criminal cases; grossly disproportionate punishment; denial of freedom to leave a country; denial of the right to return to one’s country; mass uprooting of a country’s population; denial of freedom of conscience and religion; denial of personality before the law; denial of basic privacy such as the right to marry and raise a family; and invidious racial or religious discrimination.403 Where a claim is part of such a consistent pattern, it might be actionable under this rubric. Successful litigation of such a claim, however, would require demonstrating a core of conduct that met the Sosa standard of a widely accepted, clearly defined norm. F. CLAIMS THAT HAVE BEEN GENERALLY UNSUCCESSFUL TO DATE Most claims alleging ATS jurisdiction have been dismissed in pre-trial motions, many for failure to state a violation of the law of nations that meets the ATS standard. This section first addresses two rejected claims that have been litigated repeatedly—environmental harm and loss of property—and then offers a brief overview of a few of the domestic tort claims that do not trigger ATS jurisdiction. 1.

Environmental Harm

Most ATS claims based on environmental harm have been unsuccessful, although a district court held that certain violations of the Convention on the Law of the Sea triggered ATS jurisdiction.404 Traditional norms of international law require that a state compensate another state for damage caused by pollution that physically crosses an international border and causes serious harm in the other country. This duty rests on the principle (referred to by the Latin phrase sic utere) that one should use one’s property in a manner that does no harm to others,405 a norm that has been 403

Id. Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. See discussion infra text at notes 421-422. 405 See generally Michelle Leighton Schwartz, International Legal Protection for Victims of Environmental Abuse, 18 YALE J. INT’L REL. 355, 357-58 nn.11-13 (1993). 404

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affirmed by decisions of international tribunals,406 governmental declarations,407 and the Restatement (Third).408 One district court decision, Aguinda v. Texaco, invoked the principle of sic utere in denying a motion to dismiss an action for environmental harm filed under the ATS.409 Plaintiffs represented a class of Ecuadorans claiming that Texaco’s operations had seriously harmed the environment in Ecuador. The judge indicated, without explicitly holding, that international environmental law would render a corporation liable for action in one country that causes serious environmental harm in another country (here, decisions made by Texaco that caused harm in other countries) and allowed plaintiffs to proceed with discovery.410 The judge suggested that the success of the ATS claim would depend on the plaintiffs’ ability to demonstrate that the defendant’s actions in the United States caused serious environmental problems in other countries.411 406

Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (1938 & 1941) (“no State has the right to use or permit the use of its territory in such a manner as to cause [environmental] injury . . . in or to the territory of another or the properties of persons therein”); see also Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Judgment of Apr. 9) (emphasizing, in a non-environmental context, “every States’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”). 407 Declaration of the United Nations Conference on the Human Environment, princ. 21; Rio Declaration on Environment and Development, princ. 2 (Rio Declaration). 408 RESTATEMENT (THIRD), supra note 33, §§ 601(1), 601(2)(b) (affirming a state’s responsibility for significant injury to environment beyond limits of its jurisdiction). 409

Civ. No. 93-7527, 1994 U.S. Dist. LEXIS 4718 at *19-25 (S.D.N.Y. Apr. 11, 1994), dismissed sub nom Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998). 410

Id. The court relied heavily on the Rio Declaration: Although many authorities are relevant, perhaps the most pertinent in the present case is the Rio Declaration on Environment and Development (1992). Principle 2 on the first page of the document recognizes that states have . . . “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.” The Rio Declaration may be declaratory of what it treated as pre-existing principles just as was the Declaration of Independence. Id. at * 22. 411 Id. The court noted, Plaintiffs may or may not be able to establish international recognition of the worldwide impact from effects on tropical rain forests as a result of any conduct alleged in their papers which may have been initiated in the United States. Id. at * 23.

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Aguinda was later dismissed on forum non conveniens grounds,412 however. No case has picked up on the suggestion that a claim of cross-border pollution can be based on decisions by a corporation located in another country. Efforts to base human rights claims on intrastate environmental harm have generally been unsuccessful. After a detailed analysis of international law agreements regarding the environment in Flores v. Southern Peru Copper Corp., the Second Circuit concluded that such norms remained aspirational and contested, and therefore did not satisfy the pre-Sosa requirement of a universal, obligatory, and definable violation.413 Under the Flores reasoning, such claims would also fail Sosa’s requirement of a widely accepted, clearly defined violation of international law. In Flores, Peruvians brought personal injury claims against the Southern Peru Copper Corporation, a U.S. company, alleging that pollution from the company’s copper mining operations had caused severe lung disease. The Second Circuit dismissed their claims, holding that plaintiffs had not demonstrated that environmental pollution within a nation’s borders violated well-established, universally recognized norms of international law—even though the pollution caused serious harm to human life and health. Plaintiffs had relied on treaties providing general protections for the right to life and health and on declarations specifically protecting the environment. The court found them too general to apply to intranational pollution; aspirational rather than binding; and/or addressed to governments, not private parties. Similarly, the court refused to rely on General Assembly and other multinational declarations because it held that they were neither binding nor reflections of customary international law. Finally, the court noted that decisions of the International Court of Justice and the European Court of Human Rights were not binding on the parties to this case.414 Two other courts have reached the same conclusion. In Beanal v. Freeport-McMoran, Inc.,415 the Fifth Circuit concluded: The sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute interna412

Jota v. Texaco, Inc., 157 F.3d 153 (2d. Cir. 1998). 414 F.3d 233 (2d Cir. 2003). 414 Decisions of the International Court of Justice are binding only on the parties to the particular case. ICJ Statute, art. 59. Decisions of the European Court of Human Rights apply within the European system. 415 197 F.3d 161 (5th Cir. 1999). 413

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tional environmental abuses or torts. . . . Therefore, the district court did not err when it concluded that Beanal failed to show in his pleadings that Freeport’s mining activities constitute environmental torts or abuses under international law.416 Similarly, the district court in Amlon Metals, Inc. v. FMC Corp. dismissed claims based on environmental harm, holding that “the complaint contains no clear allegation of a violation of the law of nations.”417 Efforts to characterize environmental claims as violations of the right to life and health have also been unsuccessful. In Sarei v. Rio Tinto, PLC, plaintiffs claimed that the defendant’s mining operations on Bouganville, Papua New Guinea, destroyed the environment and the health of its people, causing widespread death and illness.418 The court found no binding, definable right to life and health that would be violated by environmental violations: The relevant inquiry in assessing jurisdiction is not how plaintiffs characterize the conduct alleged in the complaint (i.e., environmental harm or deprivation of the rights to life and health), but whether “a specific, universal, and obligatory” norm prohibits the activity. . . . As in Beanal and Amlon, the court concludes that plaintiffs here have failed to demonstrate that Rio Tinto’s alleged environmental torts violated a “specific, universal, and obligatory” norm of international law.419 The district court also rejected a claimed violation of the right to “sustainable development.”420 416

Id. at 167. 775 F. Supp. 668, 671 (S.D.N.Y. 1991). Another case alleging environmental harms was dismissed on other grounds. Bano v. Union Carbide Corp., Civ. No. 99-11329, 2003 U.S. Dist. LEXIS 4097 (S.D.N.Y. Mar. 18, 2003), aff’d in part, vacated in part, remanded, 361 F.3d 696 (2d Cir. 2004) (dismissing claims arising from environmental harms caused by Indian gas plant for being untimely and directed at improper parties); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (affirming the dismissal of the ATS claims against the defendants as a prior settlement order covered all claims relating to the Indian gas leak disaster). 418 221 F. Supp. 2d 1116, 1155-60 (C.D. Cal. 2002), rev’d on other grounds, Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 419 Id. at 1160 (citations omitted). 420 Id. at 1160-61. 417

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The Sarei district court did find that one of plaintiffs’ claims triggered ATS jurisdiction, an alleged violation of the U.N Convention on the Law of the Sea (UNCLOS): Plaintiffs assert that Rio Tinto’s operation of the mine violated two treaty provisions: (1) one requiring that “states take ‘all measures . . . that are necessary to prevent, reduce and control pollution of the marine environment’ that involves ‘hazards to human health, living resources and marine life through the introduction of substances into the marine environment;’” and (2) another mandating that states “adopt laws and regulations to prevent, reduce, and control pollution of the marine environment caused by land-based sources.”421 The district court held that these treaty norms reflected customary international law and were sufficient to trigger ATS jurisdiction.422 2.

Loss of Property

Neither the expropriation of property by a government nor the simple theft or conversion of property by an individual would generally constitute a violation actionable under the ATS. Seizure or destruction of property might be actionable, however, if part of a wider campaign of abuses. In addition, the Foreign Sovereign Immunities Act permits a narrow set of claims against governments for property seized in violation of international law.423 Expropriation of property by itself is generally not actionable because the courts have held that the law of nations does not prohibit a government from 421

Id. at 1161. Id. at 1161-62. The district court, however, dismissed all of plaintiffs’ claims on the basis of the act of state doctrine; the Ninth Circuit reversed and remanded for reconsideration of the application of that doctrine, without deciding whether the law of the sea claim triggered ATS jurisdiction, Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *11-12 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 423 The FSIA provides an exception to state immunity for claims: in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States. 28 U.S.C. § 1605(a)(3). 422

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taking the property of its own citizens.424 Although several of these holdings pre-date the Fila´rtiga decision,425 isolated property claims seem unlikely to meet the Sosa requirement of a widely accepted, clearly defined violation of the law of nations.426 Moreover, courts have held that the act of state doctrine precludes consideration of a claim for property loss because the claim would require the court to determine that a foreign sovereign’s official acts performed in its own territories were invalid.427 In National Coalition Government of the Union of Burma v. Unocal, Inc., for example, plaintiffs sought to hold Unocal liable for burning homes and destroying villages in the path of a proposed oil pipeline.428 The court found that claims of property expropriation were barred by the act of state doctrine.429 Property seizures that are part of a broader set of violations, such as genocide, war crimes, or crimes against humanity, are actionable under the ATS. The district court in Presbyterian Church of Sudan v. Talisman Energy, Inc. articulated the distinction: “While expropriation or property destruction alone may not violate the law of nations, the Court finds that expropriation or property destruction, committed as part of . . . genocide or war crimes, may violate the 424 Jafari v. Islamic Republic of Iran, 539 F. Supp. 209, 215 (D. Ill. 1982). See also Chuidian v. Philippine Nat’l Bank, 912 F.2d. 1095, 1105 (9th Cir. 1990) (holding that expropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law); Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981) (holding that tortious conversion of property did not violate the law of nations and did not trigger ATS jurisdiction). 425 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 426 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See discussion of the ATS standard in Chapter 3. 427 National Coalition Government of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 349 (C.D. Cal. 1997) (citing W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990)). See discussion of act of state doctrine in Chapter 13. 428 176 F.R.D. 329, 335-36 (C.D. Cal. 1997). 429 Id. at 357. The court reached this result despite the Second Hickenlooper Amendment, 28 U.S.C. § 2370(e)(2) (2000), which states that the courts should not apply the act of state doctrine to dismiss a taking of property in violation of international law. The court held the Hickenlooper Amendment did not apply because a sovereign state’s expropriation of the property of its nationals did not implicate settled principles of international law. Id. at 357. The court also held, however, that the act of state doctrine did not preclude review of plaintiffs’ claims based on allegations of torture, forced labor and other international law violations. Id.

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law of nations.”430 Similarly, in Bodner v. Banque Paribas, the federal district court held that it had jurisdiction over the plaintiffs’ suit against a group of French banks for international violations that included aiding and abetting the Vichy and Nazi regimes to plunder plaintiffs’ private property.431 The court stated: “The alleged looting, conversion, and continued withholding of assets which rightfully belonged to the plaintiffs clearly violate the Nuremberg Principles and longstanding principles of customary international law.”432 The court held that the act of state doctrine therefore did not apply.433 3.

Miscellaneous Claims

The ATS is the only one of the four main authorizing statutes that does not specify the actionable violations. Instead, as discussed in Chapters 1-3, the ATS 430 244 F. Supp. 2d 289, 325 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (citing Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443, 478 n.134 (2001)). See also Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1142 (C.D. Cal. 2002) (concluding that the burning of houses and villages in violation of the laws of war constitute an actionable claim under the ATS); Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 464 (S.D.N.Y. 2006) (rejecting a separate claim based on property destruction alone, while recognizing that it might constitute an element of genocide or war crimes). 431 114 F. Supp. 2d 117, 122 (E.D.N.Y. 2000). The plaintiffs also accused the banks of depriving members of the Jewish community in France of a means to finance their escape and facilitating the Nazi genocide. Id. 432 Id. The Nuremberg Principles formulated after World War II defined as war crimes the “plunder of public or private property” and the “wanton destruction of cities, towns, or villages.” U.N. Int’l Law Comm’n, Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, princ. 6(b), [1950] 2 Y.B. INT’L L.COMM’N 374, U.N. Doc. A/CN.4/SER.A/1950. But see Fila´rtiga’s discussion of Dreyfus v. von Finck, 534 F.2d 24 (2d Cir.), cert. denied, 429 U.S. 835 (1976), suggesting that a claim that Nazi Germany forced its own citizens to sell property “sought to invoke international law in an area in which no consensus view existed.” Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 888 n.23 (2d Cir. 1980). The Fila´rtiga court did not consider the possibility that the confiscations might be actionable as part of other massive human rights violations. 433 Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130 (E.D.N.Y. 2000). In order for the doctrine to apply, the foreign sovereign government must be recognized by the United States at the time of the suit. In this case the Vichy government was not a recognized government. Id. Additionally, the court emphasized that this was a case against a private foreign bank, not a foreign sovereign government. Id. at 131.

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provides jurisdiction over common law claims for damages for “a tort only, in violation of the law of nations.” Pre-Sosa, the lower courts developed a stringent test to determine which claims satisfied the statute, dismissing claims that did not allege a violation of a “universal, obligatory and definable” norm of the law of nations. Sosa reformulated the standard, holding that the ATS affords jurisdiction over violations of widely accepted, clearly defined norms, but it recognized that its standard was largely consistent with that applied by earlier courts.434 Under both the earlier standard and the Sosa formulation, the lower courts have dismissed many ATS claims for failure to allege an actionable violation of the law of nations. Two of the most litigated unsuccessful claims are discussed in prior sections: environmental and property damage. This section offers a brief overview of some of the other rejected claims. Courts have clearly distinguished between violations of the Constitution and violations of international law. In Guinto v. Marcos, for example, plaintiffs claimed that the president of the Philippines and his associates had seized plaintiffs’ film.435 The Guinto court held that it did not have jurisdiction under the ATS because, “[h]owever dearly our country holds First Amendment rights,” the right of free speech did not rise to the level of a universally recognized right.436 Other claims have been rejected despite tangential connections to constitutionally protected rights, such as a claim against a corporation that purchased property expropriated because of the owner’s religion.437 Another district court dismissed a complaint alleging that the digging of a trench at the site of a German concentration camp violated the plaintiffs’ privacy rights.438 Courts have also declined to assert jurisdiction under the ATS for claims involving torts such as fraud. In Hamid v. Price Waterhouse, for example, the plaintiff filed suit against 77 defendants accusing them of fraud, breach of 434

See discussion in Chapter 3. 654 F. Supp. 276, 277 (S.D. Cal 1986). 436 Id. at 280. 437 Bigio v. Coca Cola Co., 239 F.3d 440, 447-50 (2d Cir. 2000). 438 Weiss v. American Jewish Comm., 335 F. Supp. 2d 469 (S.D.N.Y. 2004): The Court simply cannot find . . . any specific, binding legal obligations with definite content and acceptance among civilized nations that would prohibit the digging of the Trench through the Site as part of the construction of the Memorial. Id. at 476-77. 435

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fiduciary duty, and misappropriation of funds.439 In holding that the plaintiffs’ claim lacked subject matter jurisdiction, the court stated that these violations were “garden variety violations of statutes, banking regulations, and common law.”440 The court emphasized that such violations had “never been in the traditional classification of international law.”441 Several courts have applied parallel reasoning to dismiss similar claims.442 Finally, courts have declined to assert jurisdiction under the ATS for contract law claims. In Abiodun v. Martin Oil Service, Inc., Nigerian citizens had signed contracts with an oil company for training as executives in the United States and subsequent employment in Nigeria.443 When they arrived in the United States, they found they would be trained as service station operators, not executives.444 Plaintiffs asserted jurisdiction under the ATS for the contract violation, but the court held that a breach of contract did not constitute a violation of international law norms.445 439

51 F.3d 1411, 1418 (9th Cir. 1995). Id. 441 Id. 442 See, e.g., Arndt v. UBS AG, 342 F. Supp. 2d 132, 141 (E.D.N.Y. 2004) (rejecting claims for fraud, conversion, and misrepresentation); Maugein v. Newmont Mining Corp., 298 F. Supp. 2d 1124, 1130 (D. Colo. 2004) (dismissing claims for libel, bribery, and corruption); Kruman v. Christie’s Int’l PLC, 129 F. Supp. 2d 620, 627 (S.D.N.Y. 2001), aff’d in part and vacated in part, 284 F.3d 384 (2d Cir. 2002) (claim for pricefixing “borders on the frivolous”); Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 669 (S.D.N.Y. 1991) (rejecting claim for corporate misrepresentation); Zapata v. Quinn, 564 F. Supp. 23, 23-24 (S.D.N.Y. 1982) (holding that payment of lottery prize through annuity, rather than lump sum, does not constitute a tort triggering ATS jurisdiction); IIT v. Vencap, 519 F.2d 1001, 1015 (2d Cir. 1975) (dismissing claims for fraud, conversion, and corporate waste); Lopes v. Reederei Richard Schroder, 225 F. Supp. 292 (E.D. Pa. 1963) (holding that neither unseaworthiness nor negligence constituted a violation of the law of nations within the purview of the ATS). 443 475 F.2d 142, 145 (7th Cir.), cert. denied 414 U.S. 866 (1973). Abiodun, a pre-Fila´rtiga case, was recently cited with approval by Arndt v. UBS AG, 342 F. Supp. 2d 132, 140 (E.D.N.Y. 2004). 444 Abiodun v. Martin Oil Serv., Inc., 475 F.2d 142, 145 (7th Cir. 1973). 445 Id. See also De Wit v. KLM Royal Dutch Airlines, N.V., 570 F. Supp. 613, 618 (S.D.N.Y. 1983) (rejecting ATS jurisdiction over claims based on breach of contract and business torts); Valanga v. Metropolitan Life Ins., 259 F. Supp. 324, 327-28 (E.D. Pa. 1966) (holding that allegation of breach of contractual duty owed to alien does not trigger ATS jurisdiction). 440

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In dismissing these tort and contract claims, the courts often note that the claims are rooted in state law, and do not state a violation of the law of nations.446 446

See, e.g., Wong-Opasi v. Tennessee State Univ., 229 F.3d 1155 (6th Cir. 2000) (upholding lower court decision rejecting ATS jurisdiction on grounds that plaintiff alleged state contract and tort claims).

CHAPTER 8 TREATY VIOLATIONS

The Alien Tort Statute (ATS)1 permits suits both for torts in violation of “the law of nations” and for torts in violation of “a treaty of the United States.” For the first 25 years of modern ATS jurisprudence, however, cases have relied almost entirely on the law of nations prong of the statute,2 even though many of the torts that violate customary international law also violate widely ratified treaties.3 ATS decisions often cite treaties to show that a tort violates customary international law, but in such instances the court is using the treaty as evidence of a customary norm, not enforcing the treaty itself.4 Efforts to assert direct treaty claims have increased in recent years, particularly in cases against U.S. officials.5 The modern view of treaty enforcement requires that a plaintiff both demonstrate that the treaty is “self-executing” and point to a private right of action that is either incorporated in the treaty or created by another body of law. Both of these complex requirements are much debated by commentators and courts. This chapter begins by outlining the prevailing approach to treaty enforcement, while offering a brief introduction to the debate over its validity and the likely place of the ATS treaty prong within that approach. The chapter then discusses the status of claims under three often-litigated treaties, finishing 1

28 U.S.C. § 1350. For two unsuccessful efforts to rely on the ATS treaty clause, see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) (plaintiffs argued that the torts violated both the law of nations and treaties); Jama v. I.N.S., 22 F. Supp. 2d 353, 365 (D.N.J. 1998) (plaintiffs’ ATS claims based on the International Covenant on Civil and Political Rights (ICCPR) rejected on the grounds that the ICCPR was non-self-executing). 3 Genocide and torture, for example, are prohibited by widely ratified treaties. See Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention). 4 See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241-42 (2d Cir. 1995) (citing the Genocide Convention and the Torture Convention as evidence of the customary international law prohibitions). 5 Claims against U.S. officials are discussed in Chapter 11. 2

215

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with a discussion of issues raised by treaty claims against private defendants, including corporations. A. ENFORCING TREATIES IN U.S. COURTS Modern interpretation of the treaty prong of the ATS is complicated by changing historical understandings of treaties and the mechanisms by which they can be enforced in U.S. courts.6 In addition, scholars have challenged the traditional view of treaty enforcement as counter to historical understandings and the proper interpretation of the Constitution. Nevertheless, the standard view, which is explained in this section, is almost certainly the approach that a modern court will take. A treaty becomes the law of the United States, binding under the Supremacy Clause, at the time that it comes into force for the United States.7 The federal courts have subject matter jurisdiction over claims asserting a treaty violation under the federal question jurisdiction statute, 28 U.S.C. Section 1331.8 However, not all treaties are judicially enforceable. The current understanding of treaty enforcement rests upon a distinction between self-executing and non-self-executing treaties. Chief Justice Marshall articulated the distinction in 1828: Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.9 6

See generally Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. INT’L L. 695 (1995). 7 U.S. CONST., art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”); see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, pt. I, ch. 2, introductory note (1987). 8

See Jogi v. Voges, 480 F.3d 822, 824, 825-26 (7th Cir. 2007) (finding Section 1331 jurisdiction over plaintiff’s claims against state officials for violations of the Vienna Convention on Consular Relations). 9

Foster v. Neilson, 27 U.S. 253, 254, 314 (1829); see also Edye v. Robertson (The Head Money Cases), 112 U.S. 580, 598 (1884) (distinguishing between treaty provisions

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Non-self-executing treaties do not become enforceable law in the United States unless implemented through legislative or executive action. The Restatement (Third) of the Foreign Relations Law of the United States (Restatement) lists three different ways in which a treaty might be non-self-executing: (a) if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation, (b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or (c) if implementing legislation is constitutionally required.10 Non-self-executing treaties generally are not enforceable in U.S. courts. However, a treaty may contain both provisions that are self-executing and others that are not.11 In addition, even a self-executing treaty may not be enforceable by a private actor: Some self-executing treaties are enforceable only by the government. Only if the treaty also grants a private right of action, or the plaintiff can point to an alternative source for the right to sue, may an individual seek judicial remedies for its violation. As stated by the Restatement, “Treaties and other international agreements sometimes confer rights that would support a cause of action by private parties, but many agreements that may ultimately benefit that are “a compact between independent nations” and those that “confer certain rights upon citizens or subjects of one of the nations residing in the territorial limits of the other.”) 10 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 111(4). Carlos Vazquez discusses these requirements at length in Vazquez, supra note 6, and provides a slightly different, but largely overlapping, list of factors: First, legislative action is necessary if the parties to the treaty (or perhaps the U.S. treaty makers alone) intended that the treaty’s object be accomplished through intervening acts of legislation. Second, legislative action is necessary if the norm the treaty establishes is “addressed” as a constitutional matter to the legislature. Third, legislative action is necessary if the treaty purports to accomplish what under our Constitution may be accomplished only by statute. Finally, legislation is necessary if no law confers a right of action on a plaintiff seeking to enforce the treaty. Vazquez, supra note 6, at 696-97. 11 The Head Money Cases, 112 U.S. 580, 598 (1884) (analyzing provisions of treaty separately to determine whether they are self-executing); see also RESTATEMENT (THIRD) § 111 cmt. h (“Some provisions of an international agreement may be self-executing and others non-self-executing.”).

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individual interests do not give them justiciable legal rights.”12 To determine whether a treaty provision provides a private right of action, courts apply the general principles of statutory construction, first looking to the language of the treaty itself, and then to supporting materials such as its ratification history.13 To summarize, the standard view of treaty enforcement holds that a private person can seek judicial enforcement of a treaty only if: (1) it is either self-executing or incorporated into U.S. domestic law through implementing legislation; and (2) a private right to sue is provided by the treaty, by Congress or by some other body of law. Although the approach outlined here is the accepted wisdom today, scholars have contested its basic premises. First, some scholars have argued that this approach to treaty enforcement does not comport with the framers’ understanding of the role of treaties in U.S. domestic law, and it is not an accurate interpretation of the Constitution.14 Second, scholars argue that this view is a misinterpretation of Chief Justice Marshall’s holding in Foster v. Neilson, and that it actually was adopted by the Supreme Court in the 1970s and 1980s, not during the early years of the nation.15 Although these historical arguments may be accurate and may eventually be adopted by the courts, litigators should be 12

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 111 n.4. 13 See Jogi v. Voges, 480 F.3d 822, 827-35 (7th Cir. 2007) (applying traditional methods of statutory construction); Eastern Airline, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (stating that when interpreting a treaty U.S. courts first look to its plain language); De Geofroy v. Riggs, 133 U.S. 258, 271 (1890) (indicating that courts apply the plain meaning of text); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) (stating that courts must look to the intent of signatory parties manifested by the language of the instrument and, if the language of the instrument is unclear, to the circumstances surrounding execution). 14 See, e.g., David Sloss, When Do Treaties Create Individually Enforceable Rights?: The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas, 45 COLUM. J. TRANSNAT’L L. 20, 110-12 (2006); Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1097-1114 (1992); Harold H. Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2360-61 (1991); Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT’L L. 760, 760-63 (1988); Stefan Reisenfield, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AM. J. INT’L L. 892, 895 (1980). 15 27 U.S. 253 (1829). See Sloss, supra note 14, at 78-90; Carlos Manuel Vazquez, Laughing at Treaties, 99 COLUM. L. REV. 2154 (1999).

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prepared to address the currently accepted approach to treaty enforcement, as interpreted by modern courts. B. THE TREATY PRONG OF THE ALIEN TORT STATUTE (ATS) Litigants seeking remedies for a violation of a treaty that is self-executing and creates a private right of action can assert their claim directly as an actionable violation of the treaty. Federal question subject matter jurisdiction over such treaty claims is provided by 28 U.S.C. Section 1331, as well as by the ATS. Many bilateral treaties are self-executing and enforceable in U.S. courts. For example, if a defendant in a criminal prosecution is brought to the United States in violation of an extradition treaty, the defendant can invoke the treaty violation to block the prosecution.16 In the first stage of the Alvarez-Machain litigation, Alvarez challenged U.S. jurisdiction to prosecute him, claiming that he had been brought to the United States in violation of the United States-Mexico extradition treaty.17 As noted earlier, however, when a treaty is both self-executing and creates a private right to sue for its violations, the federal courts can adjudicate the claim without relying on the ATS. If a claim is based on a treaty that is self-executing but does not create a private right of action, the ATS may fill the gap. That is, the ATS may be understood as expecting that the federal courts will recognize a federal common law cause of action for violations of certain treaties. This approach parallels the Supreme Court’s interpretation of the “law of nations” prong of the statute: Sosa held that the ATS expects the courts to recognize federal common law claims for violations of international law norms comparable to those that Congress 16

See United States v. Rauscher, 119 U.S. 407, 430 (1886): [A] person who has been brought within the jurisdiction of the court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. 17 See United States v. Alvarez-Machain, 504 U.S. 655, 659-62 (1992) (discussing the line of cases holding that a criminal defendant brought to the United States in violation of an extradition treaty must be allowed to return to the place from which he was seized). Alvarez-Machain lost this case because of the Supreme Court’s interpretation of the extradition treaty, not because he lacked standing to assert a claim under the treaty. Id.

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would have recognized at the time it was enacted.18 The reasoning is the same for both prongs: Congress assumed that a private citizen had a right to seek a judicial remedy for injuries caused by treaty violations, just as Congress assumed the same for other violations of international law.19 An early case, Bolchos v. Darrel,20 and an Attorney General’s opinion21 lend support to this argument. Bolchos involved a suit by a French citizen for return of “property” (a “cargo” of persons held as slaves) allegedly seized in violation of a treaty; the court upheld jurisdiction under the ATS.22 The Attorney General’s opinion, which concerned enforcement of the Treaty of Amity and Commerce between the United States and Mexico, specifically states that the ATS “provide[s] a right of action and a forum” for private Mexican citizens whose rights may have been injured by violations of the treaty.23 If the ATS 18

Sosa v. Alvarez-Machain, 542 U.S. 692, 712-24 (2004). Some may argue that the ATS should be read as authorizing claims for violations of non-self-executing treaties as well. If Congress, when it enacted the ATS, assumed that the federal courts would use their common law power to recognize claims by individuals for violations of all treaties, or for some subset of treaties, the courts today should be able to use their common law powers in the same way. The difficulty with this argument is that it would permit an ATS claim for any tort in violation of treaties that are otherwise considered non-self-executing. This direct challenge to the doctrine of non-self-executing treaties is an uphill battle, at best. The argument might be supported by historical research aimed at uncovering what the framers would have assumed about treaty enforcement at the time they enacted the ATS, analogous to the research relied on by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 712-24 (2004) (reviewing historical evidence indicating that, at the time the ATS was enacted, Congress assumed that the courts would use their common law powers to recognize claims for widely accepted, clearly defined violations of international law). In one of the few judicial discussions of the ATS treaty prong, Judge Edwards and Judge Bork both assume that only violations of self-executing treaties would provide the basis for an ATS claim. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring) and 778 n.2 (Edwards, J., concurring), cert denied, 470 U.S. 1003 (1985). 20 3 F. Cas. 810 (D.S.C. 1795). 21 26 Op. Att’y Gen. 250 (1907). 22 Bolchos v. Darrel, 3 F. Cas. 810, 810-11 (D.S.C. 1795). 23 26 Op. Att’y Gen. 250, 251 (1907). 19

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provides a right of action or a right to sue, there is no need to look for such a right in the treaty.24 Finally, the ATS may also provide federal courts with subject matter jurisdiction over common law tort claims on behalf of aliens who allege treaty violations. Under this theory, the treaty provisions are not directly enforced; rather, the treaty violation is merely the jurisdictional prerequisite. Once federal jurisdiction is obtained, the case is tried as a tort case.25 This approach recognizes that the ATS enables the federal courts to exercise protective jurisdiction over the federal interests involved. C. COMMON TREATY CLAIMS 1.

The Vienna Convention on Consular Relations

In recent years, death penalty lawyers have championed the right of foreign citizens on death row in the United States to be informed of their right to contact their home governments. These rights are codified in Article 36(1) of the Vienna Convention on Consular Relations (Vienna Convention or VCCR), a treaty signed and ratified by the United States.26 In Jogi v. Voges, the Seventh Circuit held that a foreign national may sue a state official for damages for violation of 24 One scholar noted that the opinion in Bolchos and that of the Attorney General “support the conclusion that an alien can assert jurisdiction for a broad range of treaty violations.” Kenneth C. Randall, Federal Jurisdiction Over International Law Claims: Inquiries Into the Alien Tort Statute, 18 N.Y.U. J. INT’L L. & POL. 1, 50 (1985). 25 As Professor Casto has suggested: The [ATS] presumably vested the district courts with jurisdiction to try assaults, batteries, and trespasses that were contrary to these and other treaty provisions. This is not to say that either the treaties or the [ATS] created rights of recovery. At the very least, however, the [ATS] coupled with the treaties vested the federal courts with a protective jurisdiction to try these simple common-law torts. William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 507 (1986); see also Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fila´rtiga v. Pen˜a-Irala, 22 HARV. INT’L L.J. 53, 71 n.82 (1981) (“It is not at all clear, however, that treaty-based claims under § 1350 must prove that the treaty is self-executing”). 26 The Vienna Convention on Consular Relations provides that when the police of a signatory nation arrest a foreign national, the detaining “authorities shall inform” the foreign national “without delay” of his “righ[t]” to communicate with his nation’s consular officers.

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his rights under the VCCR.27 In a 2005 decision, the court found jurisdiction under the ATS.28 However, in 2007 the Seventh Circuit revised that decision, finding jurisdiction based on 28 U.S.C. Section 1331 and 42 U.S.C. Section 1983 and declining to reach the question of ATS jurisdiction.29 This unanimous decision: (1) offers an exhaustive analysis of the content of the right protected by the VCCR; (2) holds that the VCCR is self-executing; and (3) holds that its terms are violated by a failure to inform incarcerated foreign citizens of their right to have their consulates informed of their arrests. The Jogi court drew an important distinction between its decision and previous criminal cases in which the Seventh Circuit rejected use of the VCCR as a “shield against criminal enforcement,”30 noting that these criminal decisions pre-dated the Supreme Court’s ruling in Sosa.31 As Jogi recognizes, the VCCR plainly prescribes a rule that each individual detainee has the right to consular notification and requires the United States to give full effect to that right. It unambiguously confers a private right of action on foreign nationals in case of its violation. U.S. government practice reinforces this conclusion through codification in federal regulations and through internal government policy statements. 2.

The Geneva Conventions

The courts have disagreed about whether there is a private right of action to enforce rights under the Geneva Conventions of 1949.32 Some courts have concluded that the Geneva Conventions are not self-executing treaties and 27

480 F.3d 822 (7th Cir. 2007). Jogi v. Voges, 425 F.3d 367 (7th Cir. 2005). 29 Jogi v. Voges, 480 F.3d 822, 824-27 (7th Cir. 2007). 30 Id. at 834. 31 Id. In Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), a case challenging a criminal conviction based on violations of the VCCR consular notification procedures, the Supreme Court declined to reach the issue of whether the VCCR grants individually enforceable rights: “Because we conclude that Sanchez-Llamas and Bustillo are not in any event entitled to relief on their claims, we find it unnecessary to resolve the question whether the Vienna Convention grants individuals enforceable rights.” Id. at 2677-78. 32 The four Geneva Conventions of 1949 have been ratified by over 190 nations, including the United States. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention Relative to the Treatment of Prisoners of War; Convention Relative to the Protection of Civilian Persons in Time of War. 28

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rejected private claims brought under them.33 However, a number of courts have held that at least some provisions are self-executing.34 In re Guantanamo Detainee Cases,35 for example, held that the Third Geneva Convention was self-executing and therefore granted the detainees’ rights: Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties’ intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty.36 Although the issue reached the Supreme Court in Hamdan v. Rumsfeld, the Court did not issue a definitive ruling.37 In Hamdan, the D.C. Circuit had held that the Geneva Conventions do not create any individually enforceable rights.38 Relying on a footnote from the Supreme Court’s decision in Johnson v. Eisentrager,39 which found the 1929 Geneva Convention was not self-executing, the Hamdan panel held that there were no significant differences between the 1929 Convention and the 1949 Geneva Conventions. 33 See, e.g., United States v. Fort, 921 F. Supp. 523, 526 (N.D. Ill. 1996) (“The courts have consistently held that the Geneva Conventions . . . are not self-executing and, thus, provide no basis for the enforcement of private rights in domestic courts.”). 34 See, e.g., Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 590 (S.D.N.Y. 2002) (declaring that the Geneva Convention on Prisoners of War (GPW) “under the Supremacy Clause has the force of domestic law”); United States v. Lindh, 212 F. Supp. 2d 541, 553-54 (E.D. Va. 2002) (“[T]he GPW provisions in issue here are a part of U.S. law and thus binding in federal courts under the Supremacy Clause.”) (footnotes omitted); United States v. Noriega, 808 F. Supp. 791, 799 (S.D. Fla. 1992) (“[I]t is inconsistent with both the language and spirit of [the GPW] and with our professed support of its purpose to find that the rights established therein cannot be enforced by individual POWs in a court of law.”). 35 355 F. Supp. 2d 443, 478-79 (D.D.C. 2005). 36 Id. at 479. 37 126 S. Ct. 2749 (2006). 38 Hamdan v. Rumsfeld, 415 F.3d 39 (D.C. Cir. 2005), rev’d on appeal, 126 S. Ct. 2749 (2006). 39 Id. at 38-40 (citing Johnson v. Eisentrager, 339 U.S. 763, 789 n.14 (1950)).

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The Supreme Court reversed Hamdan without resolving the issue of the enforceability of the Geneva Conventions by private parties, but it noted that the Eisentrager footnote “does not control this case.”40 The Court also noted the commentary of the International Red Cross that the 1949 Conventions were written “‘first and foremost to protect individuals and not to serve State interests.’”41 Hamdan thus left open the issue of whether there is a private right of action under the Geneva Conventions, but with language favorable to plaintiffs in pending and future actions. The Military Commissions Act of 2006 (MCA), however, may render this an academic debate.42 The MCA includes an amendment to the War Crimes Act that states that “no person may invoke the Geneva Conventions or any protocols thereto . . . as a source of rights in any court of the United States or its states or territories.”43 Although those who have pending claims can argue that the provision is prospective only and thus does not bar their claims,44 plaintiffs raising new claims under the Geneva Conventions will have to confront the MCA’s restrictive language, unless it is amended by Congress. Possible arguments include a constitutional challenge focusing on the status of treaties as the supreme law of the land under the Supremacy Clause; the claim that the statute must be interpreted narrowly to avoid constitutional problems; and, in the case of habeas corpus review, the argument that a prohibition could violate the suspension clause.45 The MCA language, however, does not foreclose the claim 40

Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2756 (2006).

41

Id. at 2795 n.57. See also id. n.58, citing Brief Amici Curiae stating that “it should be possible in States which are parties to the Convention . . . for the rules of the Convention to be evoked before an appropriate national court by the protected person who has suffered a violation.” 42 10 U.S.C. §§ 948-950. For a general overview, see Center for Constitutional Rights, Military Commissions Act of 2006: A Summary of the Law (2006), available at www.ccr.org. 43

MCA § 5(a).

44

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (analyzing deeply rooted presumption against retroactive legislation). The drafting history of the MCA strongly supports the conclusion that it was not meant to be retroactive: Congress rejected a provision proposed by the Bush administration that would have applied the MCA retroactively. Bringing Terrorists to Justice Act of 2006, S. 3861, 109th Cong. sec. 9 (placed on calendar in Senate, Sept. 8, 2006). 45 See Petitioner’s Opposition to Motion to Dismiss or Transfer for Lack of Jurisdiction and Cross-Motion for Habeas Hearing and Related Relief, Taher v. Bush, Civ. No. 061684 (D.D.C. 2006); Amicus Brief of General Merrill A. Mcpeak in Hamdan v.

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that the Geneva Conventions reflect customary international law that can be enforced under the ATS. Putting aside the MCA, the argument for a private right to enforce the Geneva Conventions in U.S. courts is very strong. The language of the Convention explicitly refers to the protections afforded as “rights,” stating that the “protected person may in no circumstances renounce in part or in entirety the rights secured to them by the Present Convention.”46 The 1949 Conventions adopted the unanimous recommendation of the Red Cross Societies “to confer upon the rights recognized by the Conventions ‘a personal and intangible character’ allowing the beneficiaries to claim them irrespective of the attitude adopted by their home country.”47 The Conventions also sought to ensure that protected persons could use whatever means are available, including domestic judicial remedies, to protect their rights. A prisoner does not “merely have rights: he is also provided with the means of ensuring that they are respected.”48 Thus, the drafters explicitly contemplated proceedings in domestic courts: It should be possible in States which are parties to the Convention . . . for the rules of the Convention . . . to be evoked before an appropriate national court by the protected person who has suffered the violation.49 “From the practical standpoint . . . to assert that a person has a right is to say that he possesses ways and means of having that right respected.”50 Therefore, the conventions allow protected persons “to employ any procedure available, however rudimentary, to demand respect for the Convention’s terms.”51 The military has itself long recognized that the Convention is the “law . . . of the United States” enforceable by prisoners in federal court.52 Rumsfeld, Civ. No. 1:04-0159 (D.D.C. Nov. 17, 2006), both available at www.ccr.nyorg/humanrightsbook. 46

Article 7, III Geneva Convention on Prisoners of War. Article 6 states that nations cannot “restrict the rights which [the Conventions] confer upon [protected persons]” (emphasis added). 47

OFFICIAL RED CROSS COMMENTARY ON III GENEVA CONVENTION 91 (J. Pictet ed., 1952) [hereinafter Commentary]. 48 Commentary III, supra note 47, at 91-92. 49 Commentary I, supra note 47, at 84. See also Commentary III, supra note 47, at 92. 50 Id. at 83. 51 Id. at 84 (emphasis added). 52 See DEP’T OF THE ARMY, LAW OF WAR WORKSHOP DESKBOOK 79, 85 (Brian J. Bill ed., 2000) (prisoners of war “have standing . . . to seek enforcement of their GPW rights”) (emphasis added).

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3.

Child Soldiers

Combatants who are under the age of 18 have relied on two treaties to raise treaty-based ATS claims. In 1999, the International Labor Organization (ILO) adopted the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (Worst Forms of Child Labor Convention).53 The Convention prohibits “forced or compulsory recruitment of children for use in armed combat,” defining it as the worst and clearly prohibited form of child labor.54 The Optional Protocol to the Convention on the Rights of the Child on the Involvement of the Children in Armed Conflict (Optional Protocol) requires that states ensure that children, even those who are voluntary combatants, “are demobilized or otherwise released from service” and to “accord to these persons all appropriate assistance for their physical and psychological recovery, and their social reintegration.”55 The underlying principle is that, because those under 18 cannot be soldiers under international law, they cannot be detained as soldiers. The Conventions use mandatory language, stating that each signatory “shall” take measures to eliminate the forms of child labor enumerated in the Convention.56 The U.S. government has acknowledged detaining children at the Guantanamo Bay detention center, some of whom have filed claims based on violations of these treaties.57 However, no court has yet ruled on whether they are self-executing and provide private rights of action.58 53 ILO Convention No. 182, adopted June 17, 1999. As of June 16, 2006, 161 nations had ratified the Convention. 54

Id., art. 3(a).

55

Optional Protocol, art. 6.

56

See, e.g., ILO Convention No. 182, supra note 53, art. 1 (“Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.”). 57

See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 453 (D.D.C. 2005) (appeal pending) (dismissing claims); Richard J. Wilson, Children in Armed Conflict: The Detention of Children at Guantanamo Bay, and the Trial for War Crimes by Military Commission of Omar Khadr, a Child, Sept. 7, 2006, http://ejp.icj.org/IMG/MrWilson Statement.pdf; Melissa A. Jamison, Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of the Children, 9 U.C. DAVIS J. JUV. L. & POL’Y 127 (2005). 58

See Jennifer L. Johnson, Public-Private-Public Convergence: How the Private Actor Can Shape Public International Labor Standards, 24 BROOK. J. INT’L L. 291, 325-26 (1998) (stating that some ILO conventions are self-executing while others are not). See also Teresa Young Reeves, Harvest of Danger: The Child Farmworker in the United

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D. TREATY CLAIMS AGAINST PRIVATE DEFENDANTS Several ATS cases against private defendants have asserted treaty claims, but no court has yet ruled directly on the question of whether a corporation or other non-state actor can be liable for a treaty violation under the ATS. In In re Agent Orange Product Liability Litigation, for example, plaintiffs claimed that the spraying of herbicides in Vietnam violated several treaties.59 The court did not reach the question of whether plaintiffs could bring direct treaty claims because it held that the central action—“spraying of herbicides”—did not constitute a treaty violation. The Geneva Conventions may be the most likely prospects for a ruling that private persons are bound by treaty obligations, given the Nuremberg rulings that private parties may be held liable for violations of the laws of war.60 States, 8(2) HUM. RTS. BR. 12 (Winter 2001) (the U.S. claims that domestic laws already meet the standard of ILO Convention 182 and that, as a result, it does not have to pass domestic implementing legislation). 59 373 F. Supp. 2d 7 (E.D.N.Y. 2005). Plaintiffs also included treaty claims in a recent series of cases brought against U.S. government contractors who provided interrogation and translation services in the notorious Abu-Ghraib prison and other detention facilities in Iraq during the U.S. occupation; the court did not rule on the treaty issues, dismissing the ATS claims on other grounds. Ibrahim v. Titan, 391 F. Supp. 2d 10 (D.D.C. 2005); Saleh v. Titan, 436 F. Supp. 2d 55 (D.D.C. 2006). Treaty claims were also brought in ElMasri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), aff’d, 2007 U.S. App. LEXIS 4796 (Mar. 2, 2007), but the case was dismissed on the grounds that to litigate it would raise “state secrets.” 60 See, e.g., Judgment of the International Military Tribunal, in TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG (Nov. 14, 1945-Oct. 1, 1946) 171, 223 (1947) (“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”).

Part IV PARTIES

The four chapters in this part deal with the potential parties to human rights suits. Chapter 9 considers general issues relating to plaintiffs and standing to sue, including the required relationship between the plaintiff and the human rights abuse, anonymous plaintiffs, and class actions. The following three chapters relate to potential defendants. Chapter 10 begins with a review of the requirements of personal jurisdiction. The chapter then considers various liability issues, including state action; the responsibility of higher officials for acts of subordinates; and the standard governing whether a defendant may be held liable for complicity in the acts of others. Chapter 11 focuses on claims against U.S. federal and state officials and specific defenses available to them, such as the political question doctrine and the state secrets defense. The chapter includes a brief note on the Military Commissions Act of 2006. Chapter 12 considers issues unique to claims against corporations, including government contractors.

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CHAPTER 9 THE PLAINTIFF: WHO CAN SUE?

Who has standing to sue for human rights violations depends upon the statutory basis for the lawsuit. The specific requirements of each statute are discussed in prior chapters. This chapter describes more general issues common to litigation under all of the statutes. A. NATIONALITY Nationality limitations defining who can sue are clearly set forth by the applicable statutes. Nationality of the Plaintiff in a Human Rights Lawsuit Alien Tort Statute (ATS), 28 U.S.C. § 1350 . . . . . . . . . . . . . . . . . . aliens only Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 (note) . . . . . any nationality Anti-Terrorism Act (ATA), 18 U.S.C. § 2333 . . . . . . . . . . . . . . . . . U.S. national “State sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7) . . . . . . . . . . . . U.S. national Federal question jurisdiction, 28 U.S.C. § 1331 . . . . . . . . . . . . . . . any nationality Religious Freedom Restoration Act, 42 U.S.C. § 2000bb . . . . . . . . . any nationality Trafficking Victims Protection Act, 18 U.S.C. § 1595 . . . . . . . . . . . any nationality Diversity jurisdiction, 28 U.S.C. § 1332 . . . suits between a U.S. citizen and a citizen or subject of a foreign state State law claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . any nationality

Both the ATA and the “state sponsors of terrorism” exception to the FSIA apply to U.S. “nationals.” Federal law defines “a national of the United States” as: “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”1 B. LOCATION None of the human rights statutes require that the plaintiff be physically present in the United States to file a lawsuit. However, plaintiffs who are not in the United States raise logistical difficulties (communication, decisionmaking, depositions, personal security) and possible legal complications (a motion seeking dismissal on forum non conveniens grounds, for example, may be more 1

8 U.S.C. § 1101(a)(22). 231

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difficult to defend). Although not technically relevant, the judge may be more sympathetic to the claim if the plaintiffs are living in the United States. These important concerns are analyzed in Chapter 17. C. RELATIONSHIP TO THE HUMAN RIGHTS VIOLATION A plaintiff who is the actual victim of a human rights violation can sue for the injuries caused by that violation. If the plaintiff is not the actual victim of the abuse, however, the courts must decide if the plaintiff’s relationship to the victim is legally sufficient for the particular claim.2 When the victim is still alive, cases are generally brought by or on behalf of that person. The surviving victim of an abuse such as torture, for example, may be the only person with standing to sue for his or her own injuries and pain and suffering. If the survivor is a minor or otherwise incompetent to bring suit, that person’s legal representative generally can sue on his or her behalf.3 Third parties generally do not have standing to sue for injuries caused to another person,4 unless they sue as the representative of the victim (or unless they themselves allege harm, such as loss of consortium or emotional distress caused by witnessing torture). When the victim is deceased, human rights cases have been litigated by the legal representative of the estate of the decedent and by other persons harmed by the death. In a survival action, the legal representative of the estate of the deceased sues for the injuries to the decedent, including pain and suffering. In a 2 All plaintiffs must satisfy the federal requirement of standing: that is, the plaintiff must allege an actual injury—or imminent threat of injury—caused by the defendant’s conduct, or must be a legal representative of such a person. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.3 (4th ed. 2003), for a full discussion of federal standing requirements. 3 In Bowoto v. Chevron, the court applied California law to permit a relative of a surviving spouse to file a claim on her behalf as an “attorney-in-fact” representing the real party in interest: Plaintiffs have provided this Court with signed powers of attorney from the real parties in interest, authorizing the sibling plaintiffs to pursue their claims on their behalf. The Court finds these powers of attorney acceptable and therefore will allow the sibling plaintiffs to proceed on behalf of the real parties in interest as attorneys-in-fact. Bowoto v. Chevron Corp., 2006 WL 2455761, at *14 (N.D. Cal. Aug. 22, 2006). 4 The Xuncax court dismissed such claims, holding that they were not permitted under federal, state, or Guatemalan law. Xuncax v. Gramajo, 886 F. Supp. 162, 192 (D. Mass. 1995).

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wrongful death action, plaintiffs bring suit for the losses they themselves suffer as a result of the death, such as loss of support. Various family members generally have standing to sue for the wrongful death or disappearance of a relative. But exactly who can sue for such injuries depends on what law governs the issue. The case law under the ATS is not always clear about what law applies to these questions. As discussed in Chapter 2, Section C, the cause of action in an ATS case is based in federal common law; courts should therefore employ a federal common law analysis in which they consider international law, federal statutory law, federal common law, state law, and foreign law to develop a rule that best responds to the goals of the statute. Several courts considering standing to sue for abuses to another person have borrowed TVPA guidelines, recognizing that the TVPA is “the most analogous federal statute.”5 Among the federal human rights statutes, only the TVPA defines who can sue. The TVPA provides that the victim’s legal representative or “any person who may be a claimant in an action for wrongful death” may recover for an extrajudicial killing.6 The legislative history accompanying the TVPA directs the courts to the law of the forum state to determine both the “legal representative” of the estate of the deceased7 and who may be a claimant in a wrongful death action.8 State law, however, may direct the court to the procedures governing estates in the country where the deceased lived and died. If the law of the forum state governs, the legal representative may need formal 5

Id. at 189-92. When a federal statute is silent as to key details, federal courts generally borrow analogous state law (Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)), unless its application would defeat the purpose of the federal statute or “there is a special federal need for uniformity” (Agency Holding Corp. v. Malley-Duff & Ass’ns., 483 U.S. 143, 149-50 (1987)). Courts that have decided the issue to date have generally held that human rights litigation requires uniformity and have borrowed from the TVPA. See Xuncax v. Gramajo, 886 F. Supp. 162, 192 (D. Mass. 1995); Bowoto v. Chevron Corp., 2006 WL 2455761, at *11 (N.D. Cal. Aug. 22, 2006) (“The ATS does not address standing. Both parties agree, however, that the standard from the TVPA should govern plaintiffs’ standing under the ATS.”) (citing Cabello, Beanal); Cabello v. Ferna´ndez-Larios, 157 F. Supp. 2d 1345, 1356-58 (S.D. Fla. 2001) (applying TVPA standard on standing to sue to ATS claim); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 368 (E.D. La. 1997) (same). 6 TVPA, § 2(a)(2). 7 H.R. REP. NO. 102-367 (I), at 4 (1992), reprinted in 1992 U.S.C.C.A.N. 84. 8 Id.

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appointment through state probate court. If the law of the foreign country governs, the foreign law’s procedures must be followed.9 The beneficiaries in a wrongful death action include, at a minimum, all those entitled to sue in the forum state; this usually means a spouse, minor child, and/or parent, although sometimes a sibling or a more distant relative may file such a claim. State statutes often limit these suits to those who allege economic loss as a result of the death. The TVPA legislative history, however, states that if application of “Anglo-American law would result in no remedy whatsoever for an extrajudicial killing . . . application of foreign law recognizing a claim by a more distant relation in a wrongful death action is appropriate.”10 Beneficiaries thus might include a broader set of relatives under a foreign country’s law11 or under an international law principle that anyone harmed in any manner (economic or not) by an international law violation is entitled to compensation.12 Two courts have considered human rights claims by siblings for wrongful death litigated in states that do not permit siblings to sue for anything except direct financial losses. Turning to the more flexible law of the place where the abuses took place, both courts held that, since the siblings had standing under that law, the claims could go forward in the ATS suit.13 In Xuncax, for example, the court applied Guatemalan law,14 permitting a sister to recover for her 9 Since international law broadly guarantees that victims of abuse receive compensation, procedural requirements that block access to compensation arguably violate international law. See, e.g., the Universal Declaration of Human Rights, art. 8 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating . . . fundamental rights.”); Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT’L L. 1, 46-49 (2002) (discussing right to a remedy under international law). No court has gone this far, but the policy underlying the human rights statutes—a congressional concern with providing remedies for victims of egregious international human rights abuses—has led to judicial flexibility in applying the standing rules. 10 S. REP. NO. 102-249, at 7 n.10 (1992). 11 Id. (citing In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F.2d 1092, 1097-98 (5th Cir. 1986) (recognizing claim of nephew under Uruguayan law where Louisiana law would have afforded no remedy)). 12 See supra note 9. 13 Xuncax v. Gramajo, 886 F. Supp. 162, 191 (D. Mass. 1995); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1357-58 (S.D. Fla. 2001). 14 Applying the choice of law analysis articulated in Agency Holding Corp. v. MalleyDuff & Associates, 483 U.S. 143, 147 (1987), the court found the TVPA to be the federal statute most analogous to the ATS and concluded that the TVPA mandated application of

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sibling’s death even though their parents were still living, a result that would not have been permitted under the law of the forum state.15 The Xuncax court noted that “concepts such as torture and disappearance [are] unfamiliar to the law of the Commonwealth [of Massachusetts]. Simply put, municipal law is ill-tailored for cases grounded on violations of the law of nations.”16 Cabello adopted the Xuncax justification for turning to foreign law to decide this issue, finding that this approach “comport[s] with both precedent and the plain meaning of 28 U.S.C. § 1350.”17 In Bowoto v. Chevron Corp., the court also turned to foreign law after determining that siblings were not proper wrongful death plaintiffs under the laws of California.18 In that case, however, the court concluded that the laws of one state in Nigeria, the place where the injuries occurred, also barred siblings’ claims for wrongful death.19 D. ANONYMOUS PLAINTIFFS The dangers posed to those involved in human rights litigation may be reduced (though not completely eliminated) by filing a complaint anonymously. Rule 10(a) of the Federal Rules of Civil Procedure requires that the complaint “include the names of all the parties”; there is no absolute right to proceed anonymously. The practice has been allowed by the lower courts,20 however, and implicitly endorsed by the Supreme Court when disclosure would endanger the plaintiff.21 “The presumption that parties’ identities are public the law of the place where the abuses took place. Xuncax v. Gramajo, 886 F. Supp. 162, 189-92 (D. Mass. 1995). 15 Id. at 190-91. 16 Id. at 192, quoted in Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1356-57 (S.D. Fla. 2001). 17 Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1356 (S.D. Fla. 2001). 18 2006 WL 2455761 at *11 (N.D. Cal. Aug. 22, 2006). 19 Id. at *11-12. In Bowoto, siblings of the decedents filed claims on behalf of surviving spouses and children. The court applied the law of California (the forum state) to determine standing to bring state law tort claims, ordering plaintiffs to amend the complaint to name the real parties in interest represented by the siblings, and to assert that the siblings were bringing claims as the “attorneys in fact” for the real parties. Id. at *1214. 20 See, e.g., Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004); Does I Thru XXIII v. Advanced Textile Corp.n, 214 F.3d 1058, 1067-69 (9th Cir. 2000); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992). 21 See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

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information, and the possible prejudice to the opposing party from concealment, can be rebutted by showing that the harm to the plaintiff . . . exceeds the likely harm from concealment.”22 Plaintiffs with a credible fear of harm to themselves or their families should be allowed to file with fictitious names. “The danger of retaliation is often a compelling ground for allowing a party to litigate anonymously.”23 In a political asylum case, for example, the Sixth Circuit allowed a Chinese student to proceed anonymously, stating in a footnote, “Although the use of pseudonyms is not favored, we have resorted to it here to protect the petitioner’s family, who remain in China, from possible reprisals.”24 Many human rights cases have been litigated by anonymous plaintiffs, including Xuncax v. Gramajo, where the court granted a motion to file the complaint with one of the nine plaintiffs using a pseudonym because of the danger to his family in Guatemala.25 In Yousuf v. Samantar, the court granted several plaintiffs leave to file anonymously over the objections of defendant.26 Similarly, one of the Karadzic lawsuits was filed by two anonymous plaintiffs, Jane Doe I and Jane Doe II.27 Filing with a fictitious name is not a guarantee that a plaintiff’s name will never be disclosed. Clerical errors or investigations by the defendant or the media can lead to exposure. If the defendant defaults without seeking discovery, as in Xuncax and Kadic, anonymity may be preserved in the absence of a clerical error. If the case is contested, however, the court is likely to require release of the plaintiffs’ names and other identifying information—at least to the 22

Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). Id. 24 Doe v. U.S.I.N.S., 867 F.2d 285, 286 n.1 (6th Cir. 1989). 25 886 F. Supp. 162 (D. Mass. 1995). For a detailed discussion of the use of anonymous plaintiffs in human rights litigation, see Jed Greer, Plaintiff Pseudonymity and the Alien Tort Claims Act: Questions and Challenges, 32 COLUM. HUM. RTS. L. REV. 517 (2001). 26 Order, Yousuf v. Samantar, Civ. No. 1:04-1360 (E.D. Va. Jan. 7, 2005), available at www.ccr.ny-org/humanrightsbook. The case arose out of human rights abuses committed in Somalia; plaintiffs submitted evidence indicating that they risked violent reprisals if their names were made public. Plaintiffs’ Memorandum in Support of Motion for Leave to Proceed Anonymously (Dec. 28, 2004), available at ccr-ny.org/humanrightsbook. 27 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). See also Doe v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997). 23

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defendant and the defendant’s attorneys—as part of pre-trial discovery or at trial, in order to enable the defendant to prepare a defense. Where disclosure to the public is the concern, plaintiffs may agree to more limited disclosure. In Yousuf, for example, plaintiffs’ motion for leave to file anonymously included an offer to disclose their names to the defendant and his attorney if they agreed to protect them from further disclosure.28 Two human rights cases, Doe v. Islamic Salvation Front29 and Doe v. Unocal,30 triggered heated battles about the confidentiality of discovery.31 Disputed issues involved disclosure of plaintiffs’ names and other identifying information to the defendants as well as to their lawyers and others associated with the defendants. Each involved complex, fact-specific issues. The Unocal case, for example, alleged human rights abuses committed by the Burmese military working in complicity with the defendant corporation. Plaintiffs, who were living in Thailand during the litigation, sought to block disclosure of identifying information to both Burmese and Thai government officials. Defendants argued that this would inhibit their investigation of the allegations of the complaint. The court rejected many of the plaintiffs’ proposals, but did restrict disclosure of the plaintiffs’ current addresses and impose limits on disclosures to Burmese government officials. In addition, over the objection of the defendants, the court eventually allowed the plaintiffs to move to new locations that were not revealed to the defendants, a kind of witness protection plan. At the time the complaint is filed, human rights lawyers can offer prospective plaintiffs reasonable assurances that their names will not be revealed at the outset of the case, if they can present credible evidence of risk of retaliation. However, eventual disclosure at least to defendants and their counsel is likely, and accidental disclosure is always a risk. Plaintiffs could decide to withdraw from the litigation if and when ordered to disclose their names—but initiating a lawsuit knowing that plaintiffs will never agree to disclose their identity to anyone could be considered unethical. Potential plaintiffs probably 28

See Plaintiffs’ Memorandum, supra note 26. 993 F. Supp. 3 (D.D.C. 1998). 30 963 F. Supp. 880 (C.D. Cal. 1997) (Protective Order Governing the Treatment of the Identities of Plaintiffs and Certain Witnesses, Doe v. Unocal, available at www.ccrny.org/humanrightsbook). 31 The discovery disputes and resulting protective orders in both cases are described in detail in Jed Greer’s article, supra note 25, at 538-58. 29

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should not be included in a lawsuit if they feel that they cannot run any risk of having their names disclosed. Procedurally, a complaint using fictitious names should be filed with an ex parte motion for leave to file anonymously, usually accompanied by both an affidavit explaining the need to file anonymously and a memorandum of law explaining the legal precedent.32 Some districts require that the motion be ruled on before filing; others permit filing subject to a later ruling on the motion. At least one court has dismissed a complaint for failing to obtain leave to file anonymously in advance.33 E. CLASS ACTIONS Where a large group of people has been harmed by a pattern of human rights violations, it may be possible to bring a lawsuit as a class action. The federal rules require that there be questions of law or fact common to the class, a requirement likely to be satisfied if the determination of the defendant’s liability to the class members involves common legal or factual issues.34 The case must also fit within one of the three categories of class actions defined by Federal Rule of Civil Procedure 23(b), which can be summarized as: (1) a limited fund class; (2) a class seeking injunctive or declaratory relief; or (3) a class in which 32

Copies of the motion, affidavits and memorandum of law filed in Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Dec. 21, 2004), are available at www.ccr-ny.org/humanrightsbook. 33 Although the court in Estate of Rodriquez v. Drummond Co., Inc., 256 F. Supp. 2d 1250 (N.D. Ala. 2003), ruled that the failure to obtain leave to file anonymously deprived the court of jurisdiction over the complaint, the better practice seems to be to permit a retroactive motion for leave to file using a pseudonym. Compare Drummond (court did not have jurisdiction over anonymous plaintiffs because they used pseudonyms without first obtaining the permission of the court) with Doe v. Barrow County, Ga., 219 F.R.D. 189 (N.D. Ga. 2003) (court has jurisdiction to grant motion to proceed anonymously filed after defendant filed motion to dismiss). As the Barrow County court recognized, Federal Rule of Civil Procedure 17(a) makes clear that failure to obtain leave in advance does not deprive the court of jurisdiction over the complaint, stating that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” Doe v. Barrow County, Ga., 219 F.R.D. 189, 192 (N.D. Ga. 2003). 34 FED. RULE CIV. P. 23(a). In addition, the class must be so numerous that joinder of all members is impracticable, and the representatives must have claims that are typical of the claims of the class and must fairly and adequately protect the interests of the class. Id.

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common questions of law or fact predominate over questions affecting individual members and a class action is a fairer and more efficient method for adjudicating the controversy.35 1.

The Pros and Cons of Filing as a Class Action

A class action has the potential to provide representation and a remedy to all those impacted by massive human rights violations. Common issues can be litigated in one procedure, reducing legal costs and enabling counsel to pool their resources. Given the huge number of people impacted by large-scale human rights abuses and the devastating consequences of those abuses, inclusion in a class action may be the only means by which many or most survivors can attain any relief. In addition, a class action may be better suited to achieving the broader goals of many human rights lawsuits: focusing public attention on large scale human rights violations, creating a historical record of the violations, deterring future abuses, and generating structural reforms. A class action could greatly enhance both the size of a judgment and the overall impact of a lawsuit.36 A class action may be particularly appropriate when human rights violations have impacted a finite number of people in a particular geographic area, but there are too many potential plaintiffs to litigate on behalf of them individually. The compact nature of such a class might avoid the difficulties of representing a larger and less cohesive class. However, some of the inherent features of a class action could make it an inappropriate response to many large-scale human rights abuses. Class members may feel frustrated if membership in a class feels too impersonal or if resolution 35

FED. RULE CIV. P. 23(b)(3). The factors relevant to this determination are: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Id. For an introduction to the requirements for class actions, see ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS (4th ed. 2002); JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE 762-74 (4th ed. 2005). 36 Raising public awareness of past atrocities is also critical to human rights class actions. Marootian v. New York Life Ins. Co., 2001 U.S. Dist. LEXIS 22274 (C.D. Cal. Nov. 30, 2001), for example, likely educated people about the 1915 Armenian massacres and the prevalence of genocide in the early 20th century.

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of common issues blocks attention to the details of their personal stories. They may also oppose judicial acceptance of a settlement negotiated by their lawyers. Moreover, international class actions often involve logistical and legal complexities that may be multiplied by the chaos that often follows massive abuses. Such difficulties require careful advance consideration, including the question of notice to class members who may be scattered around the world or in isolated corners of their home country. These competing concerns have led commentators to stake out opposing views of human rights class actions.37 One observer has argued that a class action may actually diffuse the impact of a human rights case: It has been the tradition of human rights groups such as Amnesty International to focus upon the stories of individual victims, to put a human face upon violations that might otherwise seem too abstract and remote to engage public attention. Quantification of the scope of human rights violations, while important in some circumstances, can diminish the impact of human rights reporting by diverting public attention from the outrageousness of the abuse to the accuracy of the numerical data.38 Some feel, though, that individual compensation is an inappropriate response to massive human rights abuses. Describing class actions as a “new trend of ‘mass tort’ transnational litigation,”39 one observer concludes, “[t]he class structure facilitates generalized policies of reform, deterrence, and corrective justice and provides a forum for making broad statements of accountability for human rights abuses on an international scale.”40 Both positions have some validity. Individual actions generally offer relief to only a tiny number of those affected by a widespread human rights violations. A class action, however, may undermine the impact of individual experiences and could result in a small collection for each class member, while a class 37

See Beth Van Schaack, Unfulfilled Promise: The Human Rights Class Action, 2003 U. CHI. LEGAL F. 279, 280 n.7, citing articles with opposing views on the efficacy of human rights class actions. 38 Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN’S L. REV. 491, 501 (1993). 39 Kathryn L. Boyd, Collective Rights Adjudication in U.S. Courts: Enforcing Human Rights at the Corporate Level, 1999 B.Y.U. L. REV. 1139, 1140 (1999). 40 Id. at 1211.

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attorney earns a sizable fee.41 A class action may be an appropriate choice in certain circumstances but should be undertaken with care. Injunctive or declaratory relief class actions may not raise significant concerns. But where the class actions seek damages, issues to keep in mind include the likelihood of obtaining an enforceable judgment, the cohesiveness of the plaintiff class, and the ability of the class attorneys and representatives to communicate and consult with the class members. Where the members of the putative class have strong divisions and multiple approaches to the underlying controversy, a class action claiming to represent all of them may only contribute to the bitter legacy of human rights violations. 2.

Human Rights Class Actions

Although many human rights cases have been filed as class actions, in only a handful have the courts actually certified the class. Only one resulted in a judgment for the class; two other class actions were settled.42 In Hilao v. Marcos, litigation against the estate of Ferdinand Marcos for abuses committed under his brutal rule of the Philippines,43 the court certified the following limited fund class pursuant to Federal Rule of Civil Procedure 23(b)(1)(B): “[A]ll civilian citizens of the Philippines, who, between 1972 and 1986, were tortured, summarily executed or ‘disappeared’ by Philippine military or paramilitary groups.”44 The court required plaintiffs to opt in by returning a completed claim form.45 Ultimately, approximately 10,000 claim forms were received; in addition, more than 20 individual plaintiffs pursued their claims directly.46 41 Van Schaack provides a thoughtful discussion of the limitations and potential of such lawsuits, concluding cautiously that “the class action device—notwithstanding its potential for abuse and the challenges of its application—may provide an appropriate litigation device for human rights litigants in certain circumstances.” Van Schaack, supra note 37, at 280. 42

In addition, as discussed in Chapter 22, most of the historical injustice cases have been filed as class actions; several of those arising out of abuses committed in Europe during World War II have led to settlements. Controversy continues to rage about the settlement decision-making process, the distribution of funds, and the fees paid to the class attorneys; the particular problems triggered by those class actions are beyond the scope of this chapter. 43

103 F.3d 767 (9th Cir. 1996).

44

In re Estate of Marcos Litigation, D.C. No. MDL 840, Order Granting Class Certification (D. Haw. Apr. 8, 1991). Limited fund class actions involve claims against a fund that would be insufficient to satisfy all the claims should the suit be successful. 45

Id., Order (D. Haw. May 16, 1991).

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In re Estate of Marcos, Human Rights Litigation consolidated five separate civil suits, including the class action against the Marcos estate.47 The trial was trifurcated into proceedings on liability, punitive damages, and compensatory damages.48 In February 1995, the district court entered a final judgment awarding plaintiffs $1.2 billion in punitive damages49 and $750 million in compensatory damages, which was later affirmed by the Ninth Circuit.50 For the last decade, plaintiffs have been attempting to collect this judgment. While early on, plaintiffs successfully seized a car and a house in Hawaii worth a little over $1 million, collecting the judgment has proven exceedingly difficult. In 1999, the plaintiffs attempted to enter into a settlement agreement with the Estate, under which the Estate would pay the plaintiffs $150 million to settle all claims. Although the bulk of the Estate’s assets had previously been frozen through litigation initiated by the government of the Philippines, a Philippine court rejected the request to release $150 million to satisfy the settlement; as a result of the parties’ inability to secure the funding required for the settlement, the district court terminated the settlement agreement in 2001.51 The unsuccessful settlement negotiations also exposed some of the potential tensions lurking in human rights class actions: a private law firm representing the class sought a contingency fee of over $34 million, and the huge fee request aroused fierce protests from some members of the class.52 46

Hilao v. Estate of Marcos, 103 F.3d 767, 783 (9th Cir. 1996).

47

See In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994). 48 Id. 49

Id.

50

Hilao v. Estate of Marcos, 103 F.3d 767, 787 (9th Cir. 1996). For details of the continued efforts to collect the Marcos judgment, see Chapter 21, Section E.3. 51

52 See, e.g., Teddy Casino, Fast Forward: Poorer But Richer, BUS. WORLD, Aug. 6, 1999, at 4 (quoting some class members as describing a proposal to award the class $150 million, with over $34 million in contingency fees to the legal team, as “nauseating”). Disputes arose between the lawyers for the class and human rights organizations in the Philippines, who felt their members’ interests were not being adequately represented by the class attorneys. See, e.g., Victims’ Fund in Manila Draws Fire, N.Y. TIMES, Sept. 19, 1995, at A6 (group representing many of the class members denounced proposed settlement negotiated by the class attorneys as a “betrayal”); see also Ralph G. Steinhardt, Fulfilling the Promise of Fila´rtiga: Litigating Human Rights Claims Against the Estate of Ferdinand Marcos, 20 YALE J. INT’L L. 65, 93 (1995) (describing problems created by class certification).

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Two class actions have led to successful settlements. In Does v. The Gap, Inc. the court granted a motion for class certification under Rule 23(b)(3) for approximately 30,000 garment workers in Saipan, Northern Mariana Islands.53 The plaintiffs alleged enslavement through a conspiracy of garment manufacturers in the district. The court held that The Gap was an action “challenging the garment production on Saipan based upon allegations of peonage, not a case involving 30,000 individual tort actions.”54 As such, the court found that common issues would supersede the individual issues because it would be unnecessary to engage in “the separate adjudication of each class members’ individual claim or defense.”55 In a series of interrelated cases involving allegations of mistreatment of asylum seekers at a privately run detention facility in the United States, approximately 1,600 detainee plaintiffs alleged that they were subjected to torture and inhumane treatment.56 The class was certified in August 1998 pursuant to Rule 23(b)(3), and a settlement agreement has since been approved by the Court.57 Other attempts to certify class actions in human rights litigation have been denied. In Doe v. Unocal Corp., an action by Burmese citizens alleging human rights violations during an oil pipeline construction project, the court denied a motion for class certification for injunctive and declaratory relief under Rule 23(b)(2).58 The plaintiffs alleged that they were victims of forced labor, forced relocation, and various forms of inhumane treatment in conjunction with the project. The court found that they did not have standing to seek injunctive relief because an injunction against the corporation would not redress their injuries, given that “the cessation of these alleged acts would depend on the independent actions of companies and government entities who are not parties to this lawsuit.”59 53

2002 WL 1000073, Civ. No. 01-0031 (D.N. Mar. I. May 10, 2002). Id. at 7. 55 Id. 56 See DaSilva v. Esmor Corr. Servs., 215 F.R.D. 477 (D.N.J. 2003); Jama v. U.S.I.N.S., 343 F. Supp. 2d 338 (D.N.J. 2004). 57 Brown v. Esmor Cor. Servs., Inc., 2005 WL 1917869 (D.N.J. 2005). 58 67 F. Supp. 2d 1140, 1140-41 (C.D. Cal. 1999). 59 Id. at 1147. 54

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In Presbyterian Church of Sudan v. Talisman Energy, Inc.,60 current and former residents of southern Sudan brought suit against both the government of Sudan and a Canadian energy company alleging genocide and other crimes against humanity. Pursuant to Rule 23(b)(2) and (b)(3), the plaintiffs moved for certification of a class consisting of all non-Muslim Sudanese living in a specific geographic region of the Sudan between January 1, 1997, and June 15, 2003.61 The plaintiffs claimed that the total number of persons who would be part of the class ranged between 114,000 and 250,000.62 While finding that all of the requirements of Rule 23(a) were met, the district court denied class certification, holding that each plaintiff would have to provide individualized proof that his or her injuries were caused by the genocidal campaign.63 The plaintiffs renewed their motion using a more narrow class definition. In September 2005, the motion was again denied.64 Declining to certify a class to resolve limited issues, the court held that “[a] general determination that a campaign of genocide existed and that Talisman participated in it on occasion and to some degree is insufficiently tethered to Talisman’s liability to an individual class member to have value.”65 In Doe v. Karadzic, the plaintiffs alleged that they were victims of genocide, war crimes, and other crimes against humanity in Bosnia-Herzegovina at the hands of Karadzic, the self-proclaimed leader of the territory.66 The plaintiffs sought class certification as a voluntary class under Rule 23(b)(3) or as a limited fund class under Rule 23(b)(1)(B).67 The motion to certify as a limited fund class was granted.68 In declining to certify the plaintiffs as a voluntary class, the court noted that it had “grave doubts” about their ability to satisfy the predominance and manageability requirements of Rule 23(b)(3).69 However, the court later granted a motion to decertify the class filed by individual plaintiffs 60

226 F.R.D. 456 (S.D.N.Y. 2005). Id. 62 Id. at 458. 63 Id. at 485. 64 Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2278076 (S.D.N.Y. 2005) (appeal pending). 65 Id. at 5. 66 176 F.R.D. 458 (S.D.N.Y. 1997). 67 Id. 68 Id. at 461. 69 Id. at 463. 61

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245

who wished to opt out of the class, in light of an intervening Supreme Court decision.70 F. ORGANIZATIONAL PLAINTIFFS A handful of cases have held that associations can sue as plaintiffs under the ATS. An organization can sue for injuries to itself or to its members.71 When suing on behalf of its members, organizational standing is governed by a three-part test established by the Supreme Court in Hunt v. Washington State Apple Advertising Commission: [A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members.72 Applying this test, the court in Presbyterian Church of Sudan v. Talisman Energy, Inc. held that both the Presbyterian Church of Sudan and a Sudanese community development association had standing to sue for injuries to their members.73 Three cases have held in preliminary rulings that associations can sue for their own injuries under both the ATS and the TVPA, but the decisions express serious reservations about that conclusion. In Doe v. Islamic Salvation Front, the court reached this very tentative result: While the court has some reservations about permitting an association to sue under the ATCA and the TVPA, the Court finds that since the eight individual plaintiffs can clearly go forward, Defendant Haddam will not be prejudiced if the RAFD remains in this case. At this stage of the proceedings, the Court finds that the RAFD will be permitted to remain in the case.74 70

Doe v. Karadzic, 192 F.R.D. 133 (S.D.N.Y. 2000) (decertifying the class in light of the Supreme Court holding in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)). 71 For a full discussion of organizations’ standing to sue, see CHEMERINSKY, supra note 2, § 2.3.7. 72 432 U.S. 333, 343 (1977). The Court affirmed this test more recently in United Food and Commercial Workers v. Brown Group, 517 U.S. 544 (1996). 73 244 F. Supp. 2d 289, 331-35 (S.D.N.Y. 2003). 74 993 F. Supp. 3, 10 (D.D.C. 1998).

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However, at a later stage of the case, the court dismissed the organization plaintiff: Whether the RAFD has standing to sue depends on whether the claims against Haddam require individualized proof from each RAFD member. The fact that the RAFD seeks money damages is dispositive: it does not have associational standing, because individualized proof would be required from each member to determine the correct amount of damages if Haddam were found liable.75 The court in Drummond has also reached a tentative, positive result, based in part on the first decision in Islamic Salvation Front: Like the court in Islamic Salvation Front, this court is uncomfortable about permitting a trade union to sue under the ATCA and TVPA, particularly because neither statute addresses this issue and the legislative history does not indicate Congress’ intent. Indeed, the court questions whether allowing the union to proceed will stretch the outer reaches of the ATCA. However, the court finds that [the union] has alleged a cognizable injury, sufficient to have direct standing under ordinary circumstances and to survive a motion to dismiss. The union has alleged that defendants’ complicity in the attack against the union’s leaders has forced a number of other members and leaders of the union to go into hiding, has threatened its viability, and has forced it to expend scarce resources in providing security and protection to its members. Furthermore, monetary damages will redress the alleged injury caused by defendants. Therefore, at this procedural stage in the proceedings, the court finds that [the union] has alleged sufficient injury to have standing under the ATCA and to weather a motion to dismiss.76 No final judgment has included an organizational plaintiff.77 75

257 F. Supp. 2d 115, 119-20 (D.D.C. 2003) (citations omitted). Estate of Rodriquez v. Drummond Co., Inc., 256 F. Supp. 2d 1250, 1259 (N.D. Ala. 2003) (citations omitted). 77 See also National Coalition Government of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) (holding that government-in-exile lacked standing to bring action; labor organization had standing only to bring negligence claim on its own behalf; and labor organization lacked associational standing to bring tort claims). 76

CHAPTER 10 WHO CAN BE SUED I: PERSONAL JURISDICTION AND THEORIES OF LIABILITY

Lawsuits alleging violations of international human rights must satisfy the standard personal jurisdiction requirements for a federal civil lawsuit. Beyond this threshold issue, determining who can be sued triggers complicated liability issues, some of which are still hotly contested. The simplest human rights cases follow the Fila´rtiga model: a lawsuit against the torturer, a former government official.1 But many cases involve one or more variations on this model: non-state perpetrators, who may or may not act in coordination with state actors; commanding officers, or civilian leaders charged with responsibility for abuses committed by their subordinates; or defendants sued because they assisted the direct perpetrator in some way—a corporation that funds security forces who torture civilians, for example, or a military officer who helps select which prisoners will be killed. Some of these issues are clearly resolved by the language of one or more of the statutes authorizing human rights litigation. The Torture Victim Protection Act (TVPA), for instance, applies only to abuses committed under “color of law, of any foreign nation.”2 The “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA) only applies to states or state employees acting within their employment.3 Issues particular to each of these statutory grounds for litigation are discussed in prior chapters. The most difficult debates arise in cases filed under the Alien Tort Statute (ATS). Cases decided prior to the Supreme Court’s decision in Sosa v. Alvarez-Machain4 held private actors liable in appropriate circumstances, as well as commanding officers, conspirators, and those who aid and abet abuses. The key question today is whether anything in Sosa undermines these pre-Sosa precedents. The Supreme Court did not directly address any of these issues. However, many defendants have argued that both the Court’s cautious tone and 1 2 3 4

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 28 U.S.C. § 1350 (note), § 1(a). 28 U.S.C. § 1605(a)(7). 564 U.S. 692 (2004). 247

248 International Human Rights Litigation in U.S. Courts

its admonition to avoid extending the reach of the ATS require narrow interpretations of the liability doctrines. They also assert that liability cannot be based on any doctrine that is not itself widely accepted and clearly defined as a part of international law. Plaintiffs counter that the Court’s recognition of a federal common law cause of action in ATS cases instructs the lower courts to apply standard common law doctrines such as aiding and abetting and conspiracy liability. Moreover, plaintiffs assert that each of these doctrines is well grounded in both traditional and modern international law norms.5 As discussed in Section B of this chapter, the post-Sosa circuit court decisions side with plaintiffs on these debates, but decisions from the district courts have been mixed. After a brief discussion of personal jurisdiction in Section A, this chapter addresses three key liability issues. Section B.1 discusses the pre- and post-Sosa case law governing when private actors can be held liable for human rights violations. Section B.2 analyzes the standards for holding higher officials liable for the violations committed by their subordinates. The final section of the chapter, Section B.3, addresses various doctrines according to which defendants can be held liable for violations directly perpetrated by others, including conspiracy, aiding and abetting, and various common law tort theories. Although these doctrines are often referred to as imposing indirect or secondary liability, neither the cases nor the commentators are consistent in using these labels. Some commentators, for example, consider aiding and abetting a form of direct liability, because it imposes liability for the defendant’s own actions, facilitating human rights violations committed by others. We have used the term direct liability in the more traditional sense, however, to refer to claims that defendants or their employees (in the case of a corporation) have themselves committed the underlying acts constituting the human rights violation. Indirect liability refers to claims that the defendant is liable for human rights violations when the acts were committed by others, whether because of assistance offered to the direct perpetrator, conspiracy, or another connection to the underlying abuses. We distinguish each of these from vicarious liability, which holds a defendant liable for the actions of others based solely on their legal relationship (e.g., employer/employee or principal/agent). 5

This debate parallels that surrounding many post-Sosa issues; it may be helpful at this point to review Chapters 1-3.

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A. PERSONAL JURISDICTION As in any lawsuit, the court must have personal jurisdiction over the defendant. Although international human rights claims often arise in unusual factual settings, ordinary rules governing personal jurisdiction apply. An assertion of personal jurisdiction must be both authorized by statute and meet the constitutional requirement of due process.6 With minor exceptions discussed below, the federal courts have personal jurisdiction over defendants to the same extent as the courts of the state in which the district court is located.7 Personal jurisdiction over an individual defendant in human rights litigation is usually obtained through personal service within the district where the lawsuit was filed. Personal service upon a defendant physically present in the district is constitutionally sufficient to trigger personal jurisdiction even where the defendant is only temporarily present in the district.8 A court can also assert personal jurisdiction over citizens of the state in which the case is filed9 and over corporations in their state of incorporation. Personal jurisdiction may also be obtained over a non-resident foreign individual or organization based upon a “minimum contacts” analysis.10 Although state laws vary, most states assert general personal jurisdiction over parties who maintain regular and systematic activity within the state.11 For example, in Wiwa v. Royal Dutch Petroleum Co., the Second Circuit found personal jurisdiction over the two foreign corporate defendants based upon the activities of an Investor Relations Office located in New York, which had one 6

See JACK H. FRIEDENTHAL, ET AL., CIVIL PROCEDURE, ch. 3 (4th ed. 2005), for a detailed discussion of the rules governing personal jurisdiction. 7 FED. R. CIV. P. 4(k)(1)(A). 8 Burnham v. Superior Court of California, 495 U.S. 604 (1990) (upholding constitutionality of personal jurisdiction based on service while physically present in the state). See Kadic v. Karadzic, 70 F.3d 232, 246-47 (2d Cir. 1995) (upholding assertion of personal jurisdiction over defendant served in a hotel lobby during a visit to the United States). 9 Milliken v. Meyer, 311 U.S. 457 (1940). 10 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 11 Long-arm jurisdiction applies to individuals as well as corporations, although not all states extend general personal jurisdiction to individuals. Shaffer v. Heitner, 433 U.S. 186, 204 n.19 (1977). State long-arm statutes also assert specific personal jurisdiction over absent defendants if the cause of action arose out of the defendant’s in-state activity.

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employee.12 In Doe v. Unocal Corp., however, the Ninth Circuit dismissed claims against co-defendant Total, a French oil corporation, for lack of personal jurisdiction.13 The court held that Total did not have sufficient ties with California to support general personal jurisdiction and that the plaintiffs’ claims did not arise out of Total’s limited contacts with that state so as to support specific personal jurisdiction. The federal rules extend the limits of personal jurisdiction in two ways relevant to human rights litigation. First, the federal courts can assert jurisdiction “when authorized by a statute of the United States.”14 As discussed in Chapter 6, Section C, this provision applies to claims filed under the Racketeer Influenced and Corrupt Organizations Act (RICO). Second, Rule 4(k)(2) of the Federal Rules of Civil Procedure authorizes federal courts to assert jurisdiction over a defendant “who is not subject to the jurisdiction of the courts of general jurisdiction of any state” if doing so would be “consistent with the Constitution and laws of the United States.” This provision applies to an individual or organization who has contacts with the United States as a whole but insufficient contacts to allow any one state to assert jurisdiction. Critics have pointed out the difficulty that this provision would impose on plaintiffs if they were required to affirmatively demonstrate that none of the 50 states had personal jurisdiction over the defendant. As a result, courts have upheld resort to Rule 4(k)(2) where the defendant fails to identify a state in which it would be subject to personal jurisdiction: A defendant who wants to preclude use of Rule 4(k)(2) has only to name some other state in which the suit could proceed. Naming a more appropriate state would amount to a consent to personal jurisdiction there (personal jurisdiction, unlike federal subject-matter jurisdiction, is waivable). If, however, the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).15 12

226 F.3d 88, 94-99 (2d Cir. 2000). 248 F.3d 915 (9th Cir. 2001). 14 FED. R. CIV. P. 4(k)(1)(D). 15 ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001). See also Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004) (“[S]o long as a defendant does not concede to jurisdiction in another state, a court may use 4(k)(2) to confer jurisdiction.”); Mwani v. Bin Laden, 417 F.3d 1 (D.D.C. 2005) (same). 13

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In default cases, however, some courts have refused to impose on the defendant the burden of identifying a state where suit is possible when the record makes clear that the defendant is subject to personal jurisdiction in one or more states.16 B. GENERAL ISSUES RELATED TO THE DEFENDANT’S LIABILITY 1.

State Action/Private Defendants

Many, but not all, international human rights violations require some connection to state action. The Torture Convention, for instance, prohibits torture inflicted by or with the acquiescence of “a public official or other person acting in an official capacity.”17 Other international human rights prohibitions, however, apply directly to private actors without any connection to state action.18 The Genocide Convention, for example, applies explicitly to private individuals.19 Slavery, piracy, certain war crimes, and crimes against humanity are similarly prohibited by international law whether or not committed under color of law.20 Most early ATS cases after Fila´rtiga involved claims against government officials. For instance, Pen˜a-Irala was a police officer,21 Suarez-Mason was a general,22 and Marcos-Manotoc commanded the military intelligence personnel.23 Soon after the Fila´rtiga decision, however, the D.C. Circuit rejected an 16 See A, B, C, D, E, F v. Jiang Zemin, 282 F. Supp. 2d 875, 886 (N.D. Ill. 2003) (rejecting reliance on Rule 4(k)(2) because plaintiffs conceded that jurisdiction existed in other states); Doe v. Lumintang, Civ. No. 00-674, 2005 U.S. App. LEXIS 13962 (D.D.C. Nov. 10, 2004) (rejecting reliance on Rule 4(k)(2) where defendant was personally served in Virginia because courts of that state had personal jurisdiction over him). 17 Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment of Punishment, art. 1(1). 18 See Kadic v. Karadzic, 70 F.3d 232, 239-42 (1995) (discussing international law violations that do not require state action). 19 Convention on the Prevention and Punishment of the Crime of Genocide, art. 4 (mandating punishment of all those who commit genocidal acts, “whether they are constitutionally responsible rulers, public officials or private individuals”). 20 Each of these violations is discussed in detail in Chapter 7. 21 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 22 Forti v. Suarez-Mason, 672 F. Supp. 1531 (C.D. Cal. 1987). 23 Trajano v. Marcos (In re Estate of Marcos Litigation), 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993).

252 International Human Rights Litigation in U.S. Courts

ATS claim based upon an attack on civilians in Israel conducted by a non-state actor, the Palestinian Liberation Organization (PLO).24 In Tel-Oren, two members of the panel agreed that non-state actors like the PLO could not be sued for acts of terrorism.25 The Second Circuit’s 1995 decision in Kadic v. Karadzic reframed the analysis of the liability of non-state actors under the ATS.26 The district court judge in Kadic dismissed claims for torture, genocide, war crimes, and crimes against humanity arising out of events in Bosnia because he found that Radovan Karadzic was not a state actor.27 The district court’s opinion suggested that private parties could never be defendants in ATS actions because international law could be violated only by states.28 The Second Circuit reversed for several reasons. First, the circuit held that private parties themselves can be found liable for violations that do not require state action, including genocide, war crimes, and crimes against humanity. Significantly, the court also found that no additional showing of state action was required to find liability under the ATS for torture or other violations requiring state action, if such acts were committed in furtherance of genocide, crimes against humanity, or war crimes.29 Second, the Second Circuit held that private actors can be held liable for violations that do require state action when they act under the color of official authority. The court indicated that the “color of law” jurisprudence developed under the Fourteenth Amendment and 42 U.S.C. Section 1983, the federal civil rights law, should be used to determine whether a private defendant was acting under color of law.30 24

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984). Id. at 791 (Edwards, J., concurring) and 801-08 (Bork, J., concurring). But see Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2382-83 (1991). 26 70 F.3d 232 (2d Cir. 1995). 27 Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994), rev’d sub nom. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). 28 Doe v. Karadzic, 866 F. Supp. 734, 741-42 (S.D.N.Y. 1994). 29 Kadic v. Karadzic, 70 F.3d 232, 239-42 (2d Cir. 1995). See also In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 52-54 (S.D.N.Y. 2005); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 100 n.6 (D.D.C. 2003). 30 Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995). See Forti v. Suarez-Mason, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987), reconsideration granted in part on other grounds, 694 F. Supp. 707 (N.D. Cal. 1988) (noting that 28 U.S.C. Section 1983 principles apply to ATS claims). 25

Personal Jurisdiction and Theories of Liability 253

Several ATS decisions involving private defendants have applied this approach to find state action based on the Supreme Court’s color of law standards.31 The Court has articulated four tests to determine whether private conduct constitutes state action32 ; plaintiffs most often rely on the “joint participation” test, which considers private parties to be state actors if they are “willful participant[s] in joint action with the State or its agents.”33 In Doe v. Unocal Corp., for example, plaintiffs alleged that the private defendants jointly participated with Burmese government officials to engage in forced labor and other human rights violations in connection with a gas pipeline project.34 The Unocal defendants paid the Burmese military to provide security and entered into a joint venture to develop the pipeline. The court found this sufficient to impose liability for international law violations requiring state action. 31 Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1249-50 (11th Cir. 2005) (finding that the armed involvement of the municipality’s mayor established state action); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104 (2d Cir. 2000); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1175 (C.D. Cal. 2005) (finding the “color of law” requirement satisfied since defendant company directly paid its security forces through the Colombian defense ministry); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003); Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1264 (N.D. Ala. 2003) (finding sufficient allegations of state action when the plaintiff union alleged that “some of the defendant paramilitaries that murdered union leaders were dressed in Colombian military uniforms and were members of the Colombian military”); Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 0256256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822; Tachiona v. Mugabe, 169 F. Supp. 2d 259, 315 (S.D.N.Y. 2001) (finding that “[p]laintiffs’ allegations and related evidence support the ‘color of law’ and state action requirements for the purposes of Plaintiffs’ action against ZANU-PF,” a private paramilitary group); Doe v. Unocal, Corp., 963 F. Supp. 880, 892 (C.D. Cal. 1997) (finding a sufficient connection between the Burmese government and defendant company to establish state action). 32 The four tests are the “nexus text,” the “symbiotic relationship test,” the “joint action test,” and the “public function test.” See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1980) (applying public function test and nexus tests), Dennis v. Sparks, 449 U.S. 24, 27 (1980) (applying joint action test); Burton v. Wilmington Parking Auth. 365 U.S. 317, 325 (1961) (applying symbiotic relationship test). 33 See Dennis v. Sparks, 449 U.S. 24, 27 (1980). See also Wiwa v. Royal Dutch Petroleum, Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 22, 2002). 34 963 F. Supp. 880 (C.D. Cal. 1997).

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In Sinaltrainal v. Coca-Cola Co., the plaintiffs alleged that “the paramilitary are permitted to exist, openly under the laws of Colombia, and are assisted by government military officials” and that “the paramilitary has a mutually-beneficial, symbiotic relationship with the Colombia government’s military.”35 The court explained that a symbiotic relationship existed when two parties confer benefits on each other such that their interdependence is essential to the other’s success. It found that plaintiffs’ allegations would “establish that the paramilitary murdered [a labor union activist] under color of law by acting with significant aid from officials of the Colombian government.”36 At times, courts rely on more than one test. For example, in Sarei v. Rio Tinto, PLC, the court employed a mixed nexus/joint action test.37 In that case, the defendants and the government had joint financial interests in a copper mine. The defendant and the government jointly engaged in military efforts against the native people of Bougainville in an effort to protect their financial investment, which the court found satisfied the state action requirement.38 In some cases, defendants’ acts have been found to be too attenuated to be attributed to the state action being challenged. In Bigio v. Coca-Cola Co., for instance, plaintiffs brought suit against Coca-Cola seeking damages for the nationalization of the plaintiffs’ property.39 Plaintiffs claimed the Egyptian government nationalized their land and factories in Egypt in 1962 because plaintiffs were Jewish. The Egyptian government then leased the property to a government-owned bottling company. When Coca-Cola invested in the bottling company several years later, plaintiffs demanded compensation for their property loss. The Second Circuit found Coca-Cola’s connection to the property seizure too attenuated to find state action.40 The court in Beanal v. Free35

256 F. Supp. 2d 1345, 1353 (S.D. Fla. 2003).

36

Id. at 1353 n.6. See also Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250 (N.D. Ala. 2003). 37

221 F. Supp. 2d 1116, 1153-54 (C.D. Cal. 2002), dismissed on other grounds, dismissal rev’d by Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 10799, at *11 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (affirming the district court’s ruling that plaintiffs’ racial discrimination claims sufficiently alleged state action). 38

Id. at 1154. 239 F.3d 440 (2d Cir. 2001). 40 Id. See also Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005) (appeal pending) (finding the connection between Caterpillar, Inc. and the Israeli government too attenuated to constitute state action); In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004) (appeal pending) (finding that the economic 39

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port-McMoran, Inc. refused to accept that the act of owning and operating a mine that encompassed 26,400 square kilometers and was policed by private security forces was akin to owning and operating a town for purposes of the public function test.41 The issue of state action was not before the Court in Sosa v. Alvarez-Machain, where state action was satisfied with a stipulation by the government that Sosa was acting under the color of state authority when he kidnapped Dr. Alvarez.42 Nevertheless, the Sosa Court did refer to the issue in footnote 20 of its decision, which reads: A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (D.C. Cir. 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadzic, 70 F.3d 232, 239-241 (2d Cir. 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).43 Post-Sosa, one district court relied upon footnote 20 and other cautionary language in Sosa in finding that using the “under color of law” jurisprudence in domestic civil rights litigation constitutes an unwarranted extension of ATS liability. In Doe v. Exxon Mobil Corp., the court held that recognizing acts under color of law would impermissibly extend the reach of the ATS, which would be inconsistent with Sosa’s admonishment to consider the “practical consequences” of making a cause of action available to litigants in federal court.44 In the district court’s opinion, importing the Section 1983 analysis into ATS claims was merely “an end-run around the principle that most violations of international law benefits the defendant company derived from unlawful state action of the apartheid government were not sufficient to establish joint action with the apartheid regime); Bao Ge v. Li Peng, 201 F. Supp. 2d 14, 22 (D.D.C. 2000) (finding the connection between defendant and China too attenuated to constitute state action). 41 969 F. Supp. 362, 380 (D. La. 1997). 42 See United States v. Caro-Quintero, 745 F. Supp. 599, 609 (C.D. Cal. 1990). The state action issue was never raised in the civil lawsuit in Sosa. 43 Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004). 44 393 F. Supp. 2d 20 (D.D.C. 2005); Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).

256 International Human Rights Litigation in U.S. Courts

can be committed only by states.”45 Moreover, the court found that the language in footnote 20 suggested that only states, and not corporations or individuals, were liable for international law violations. Under this unprecedented approach to state action, torture, extrajudicial killing, and arbitrary detention can never be committed by private individuals, no matter how intertwined their actions are with the state’s in committing the international law violation. This decision is flatly inconsistent with the Second Circuit’s reasoning in the Kadic case and clearly is not a result required by anything in the Sosa opinion, including footnote 20. After the Exxon Mobil decision, the district court in Bowoto v. Chevron Corp. reached a similar conclusion, determining that “the ‘color of law’ jurisprudence developed under § 1983 is not a well developed international norm.”46 Although it granted that “there is no dispute that foreign officials may be held individually liable for their official actions,” the court attempted to draw a distinction for private actors, stating that international law does not extend to “a private party participating in or conducting a violation of an international law that only applies to states.”47 However, the Bowoto court reconsidered its exclusive reliance on international law in a subsequent decision on aiding and abetting liability, holding that “[c]ourts applying the [ATS] draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.”48 These early decisions did not consider international law principles addressing the liability of non-state actors for their connection to human rights violations requiring state action. These international norms may be broader than “under color of law” principles in domestic law, so that adoption of international principles could broaden, rather than narrow, the scope of ATS liability for non-state actors.49 To date, there is little case law addressing the international principles of non-state actor liability in this context. 45

Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 26 (D.D.C. 2005).

46

Civ. No. 99-02506, 2006 U.S. Dist. LEXIS 63209, at * 26 (N.D. Cal. Aug. 21, 2006). 47

Id. at * 27 n.9.

48

Bowoto v. Chevron Corp., 2007 WL 2349341, at *7 (N.D. Cal. Aug. 14, 2007) (citing the panel decision in Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 10799 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822). 49 These international law issues are beyond the scope of this book, but it should be noted that international jurisprudence appears to be expanding recognition of non-state actor liability. See, e.g., Naomi Norberg, The U.S. Supreme Court Affirms the Fila´rtiga Paradigm, 4 J. INT’L CRIM. JUST. 387 (2006); Claudia T. Salazar, Applying International

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Underlying the debate about the meaning of footnote 20 is a choice of law question: What law governs the question as to whether private individuals can be held liable for international law violations that require state action? If the courts adopt a federal common law analysis, as Sosa seems to require,50 courts considering these issues would look to both domestic “under color of law” principles and international law, including general principles of law accepted by all civilized nations, to determine the circumstances in which non-state actors may be found liable for their connection to human rights violations committed by state officials. This interpretation is strongly supported by the Ninth Circuit’s analysis in Sarei v. Rio Tinto, PLC, which held that “courts applying the [ATS] draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.”51 However, even if the courts decide that the issue is governed by international law, they should engage in a thorough analysis of international law principles governing state action requirement. 2.

Responsibility of Higher Officials

Liability under both the ATS and the TVPA extends beyond the individuals who personally commit human rights violations, to superiors who bear responsibility for the actions of their subordinates. The military tribunals at Nuremberg and Tokyo after World War II applied the doctrine of command responsibility,52 as did the U.S. Supreme Court in In re Yamashita.53 Domestic courts in ATS and TVPA cases have held defendants liable for the actions of their subordinates, whether the violations occurred in wartime or in peacetime.54 U.S. decisions look to case law of international tribunals to define the scope of command responsibility. While there is no disagreement regarding application of the doctrine to ATS and TVPA cases, the law is still evolving on issues such as burden of proof. Human Rights Norms in the United States: Holding Multinational Corporations Accountable in the United States For International Human Rights Violations Under the Alien Tort Claims Act, 19 ST. JOHN’S J. LEGAL COMMENT 111 (2004). 50 See Chapter 2, Section C. 51 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 10799, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 52 See, e.g., United States v. von Leeb (The High Command Case) (Case No. 12, 1948), reprinted in 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS 1, 512 (1951) [hereinafter NUREMBERG TRIBUNALS]. 53 327 U.S. 1 (1946). 54 See, e.g., Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002); Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9th Cir. 1996); Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004).

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The courts agree on the elements necessary to establish command responsibility. The Eleventh Circuit in Ford v. Garcia spelled out the required elements: The essential elements of liability under the command responsibility doctrine are: (1) the existence of a superior-subordinate relationship between the commander and the perpetrator of the crime; (2) that the commander knew or should have known, owing to the circumstances at the time, that his subordinates had committed, were committing, or planned to commit acts violative of the law of war; and (3) that the commander failed to prevent the commission of the crimes, or failed to punish the subordinates after the commission of the crimes.55 In Chavez v. Carranza, plaintiffs brought suit for extrajudicial killing and torture against the former Vice-Minister of Defense of El Salvador. Plaintiffs alleged that Carranza exercised command control over three units of the Security Forces that were responsible for widespread attacks on civilians.56 The judge explained the three elements in the following jury instruction, which captures the factors set out by the Eleventh Circuit in Ford: The plaintiffs seek to hold the defendant responsible under the law of command responsibility. The law of command responsibility makes a military commander liable for the acts of his subordinates even if the commander did not order those acts. To hold a military commander liable under the law of command responsibility, the plaintiffs must prove the following elements by a preponderance of the evidence: (1) A superior-subordinate relationship existed between the defendant and the person or persons who committed torture, extrajudicial killing and/or crimes against humanity. (2) The defendant knew or should have known, in light of the circumstances at the time that his subordinates had committed, were committing or were about to commit torture, extrajudicial killing and/or crimes against humanity. (3) The third element, the defendant failed to take all necessary and reasonable measures to prevent these abuses or failed to punish the subordinates after the commission of torture, extrajudicial killing and/or crimes against humanity.57 55

Ford v. Garcia, 289 F.3d 1283, 1288 (11th Cir. 2002). Proximate cause is not an element of command responsibility. See Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir. 1996); Ford v. Garcia, 289 F.3d 1283, 1299 (11th Cir. 2002). 56 57

413 F. Supp. 2d 891 (W.D. Tenn. Oct. 26, 2005).

Trial Proceedings Before the Honorable Jon Phipps McCalla, 1782-83 (Nov. 14, 2005), available at http://www.cja.org/cases/carranzatranscripts/carranza10.txt. The Carranza jury instructions are available at www.ccr-ny.org/humanrightsbook.

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These formulations elaborate upon the simpler ones used in earlier cases. The jury instructions in the Marcos trial, for example, stated that the jury could find for the plaintiffs if Ferdinand Marcos: had knowledge that the Philippine military, paramilitary and/or intelligence forces tortured, summarily executed, caused the disappearance or arbitrary detention of plaintiffs and the class, and having the power failed to take effective measures to prevent the practice.58 Key to this standard is the commander’s obligation to prevent and punish human rights violations.59 Commanding officers who fail to do so can be held liable for the abuses committed by their troops, whether or not they order the abuses or even know about specific violations. Ford v. Garcia, in which victims of torture and extrajudicial execution sued Salvadoran generals under the TVPA and ATS, raised an important issue concerning the elements necessary to prove command responsibility.60 The jury found for the defendants after an instruction from the trial judge stating that the plaintiffs had to prove by a preponderance of the evidence that “persons under defendant’s effective command had committed or were about to commit torture and extrajudicial killing.” On appeal, the plaintiffs objected to the requirement that it was their burden to persuade the jury that the defendants had “effective command,” arguing that lack of “effective command” was an affirmative defense to be proven by the defendants. That is, plaintiffs claimed that once they demonstrated that the defendants had command over those who committed the violations, it was for defendants to prove that their command was not “effective.” Since plaintiffs had not objected to the instruction at trial, the 58

In re Estate of Marcos Litigation, D.C. No. MDL 840 (D. Haw. Feb. 3, 1995). See Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir. 1996). The Marcos jury instructions are available at www.ccr-ny.org/humanrightsbook. This standard was incorporated into one of the Karadzic complaints as an allegation that the defendant had command authority over the forces that committed human rights abuses, and that he “knew or should have known of the above-described actions of his troops and failed to prevent or punish said actions.” Complaint at ¶ 26, Doe v. Karadzic, No. 93 Civ. 878 (S.D.N.Y. Feb. 11, 1993), consol. for decision sub nom. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). 59 Several cases arising out of the Nuremberg trials are frequently cited as stating this standard of liability. See United States v. von Leeb (The High Command Case) (Case No. 12, 1948), reprinted in 11 NUREMBERG TRIBUNALS, supra note 52, at 1, 512; United States v. List (The Hostage Case) (Case No. 7, 1948), reprinted in 11 NUREMBERG TRIBUNALS supra note 52, at 759, 1256, 1260. 60 Ford v. Garcia, 289 F.3d 1283, 1283 (11th Cir. 2002).

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Eleventh Circuit applied the “plain error” standard of review and decided in favor of the defendants, although not definitively. As the court said: Even were we to read these cases in the light most favorable to Appellants, however, the decisions at least suggest that the burden of persuasion on this matter is not altogether certain. We, therefore, hold that there was no plain error here because the district court’s instruction included an element which properly must be proved in command responsibility cases and no case law exists clearly assigning the burden of persuasion away from the plaintiff on this matter.61 The issue is not foreclosed. In future cases, plaintiffs should argue that the burden of persuasion regarding a lack of “effective” control is on the defendants.62 The court in Carranza, however, rejected this argument and defined the issue as follows: The first element of command responsibility is the existence of a superior-subordinate relationship between the defendant and the person or persons who committed the abuses involved in this case. To establish this element, the plaintiffs must prove, by a preponderance of the evidence that the defendant had “effective control” over the person or persons who committed torture, extrajudicial killing and/or crimes against humanity. The “effective control” requirement is satisfied if the defendant had the legal authority and practical ability to exert control over his subordinates. The defendant cannot escape liability, however, where his own action or inaction caused or significantly contributed to a lack of effective control over his subordinates. Even if a defendant lacked legal authority, he nonetheless possessed “effective control” if he had the practical ability to exert control over his subordinates.63 These definitions of command responsibility reflect both U.S. and international law standards. The U.S. military, for example, holds a commander responsible for the actions of his subordinates not just if he orders his troops to commit abuses, but also: 61

Id. at 1292. It should be noted that Article 28 of the Statute of the International Criminal Court requires “effective command and control” as an element of the crime. However, that is a criminal statute and for that reason may hold the prosecutor to a higher standard of proof. 63 Trial Proceedings Before the Honorable Jon Phipps McCalla, 1782-83 (Nov. 14, 2005), available at http://www.cja.org/cases/carranzatranscripts/carranza10.txt. The Carranza jury instructions are available at www.ccr-ny.org/humanrightsbook. 62

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if he has actual knowledge or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.64 Similar command responsibility principles are endorsed by the TVPA. The TVPA Senate Report states that “a higher official need not have personally performed or ordered the abuses in order to be held liable” and cites several formulations of the standard, finding liability for: (a) persons who “ordered, abetted, or assisted” in the violation;65 (b) “anyone with higher authority who authorized, tolerated or knowingly ignored” the acts66 ; or, (c) commanders whose troops acted “pursuant to a ‘policy, pattern and practice’” or committed acts “about which [the commander] was aware and which he did nothing to prevent.”67 The courts have recognized that this legislative history indicates that Congress intended to adopt the international law doctrine of command responsibility as part of the TVPA.68 U.S. decisions refer to and follow international criminal jurisprudence to interpret the doctrine of command responsibility in ATS and TVPA cases. For example, the Eleventh Circuit in Ford v. Garcia cited cases decided by international tribunals.69 The Court stated: 64

U.S. DEPT. OF THE ARMY, FIELD MANUAL: THE LAW OF LAND WARFARE, FM 27-10, ¶ 501 at 178-79 (1956); accord U.S. DEPART. OF AIR FORCE, INTERNATIONAL LAW: THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS, AFP 110-31, ¶ 15-2d (1976). See also In re Yamashita, 327 U.S. 1, 13-14 (1946). 65 S. REP. NO. 102-249, at 8 (1991). 66 Id. at 9. 67 Id. (citing Forti v. Suarez-Mason, 672 F. Supp. at 1531, 1537-38 (N.D. Cal. 1987) (Forti I)). 68 Ford v. Garcia, 289 F.3d 1283, 1288 (11th Cir. 2002). The court noted that the Senate Report explicitly referred to In re Yamashita, 327 U.S. 1 (1946), in which the Supreme Court adopted the doctrine of command responsibility. Ford v. Garcia, 289 F.3d 1283, 1289 (11th Cir. 2002) (citing In re Yamashita). See also Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1333 (N.D. Cal. 2004); Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9th Cir. 1996); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148 (11th Cir. 2005). 69 Ford v. Garcia, 289 F.3d 1283, 1290-99 (11th Cir. 2002).

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The recently constituted international tribunals of Rwanda and the former Yugoslavia have applied the doctrine of command responsibility since In re Yamashita, and therefore their cases provide insight into how the doctrine should be applied in TVPA cases.70 The Court also referred to the Statute of the International Criminal Court to further confirm its interpretation of the command responsibility doctrine.71 In early post-Fila´rtiga ATS command responsibility cases, plaintiffs often went beyond the minimum necessary to hold a commander liable, alleging that the defendant personally ordered or directed the abuses. In Forti v. Suarez-Mason (Forti I), for example, defendant Suarez-Mason was held responsible for abuses committed by soldiers under his command based on a finding that he had “authorized, approved, directed and ratified” the actions as part of a “policy, pattern and practice” that he had endorsed.72 In Xuncax v. Gramajo, the court found Gramajo liable for the acts of his subordinates under two standards of liability.73 First, he was “personally responsible for ordering and directing” the program of human rights abuses that included the gross atrocities inflicted on the plaintiffs.74 Second, Gramajo “was aware of and supported” the abuses committed by personnel under his command, and “refused to act to prevent such atrocities.”75 In a more recent case against Chinese officials for persecuting practitioners of Falun Gong, Doe v. Liu Qi, the court found the defendants liable under the minimum command responsibility standard.76 Similarly, the judge in Ford adopted the minimum command responsibility requirements.77 These cases 70

Id. at 1290. “Although case law from recent international tribunals is sufficient to convince us that no plain error occurred here in the giving of the command responsibility instruction, we observe that the statute of the recently ratified International Criminal Court, commonly referred to as the Rome Statute, supports our holding on this matter as well.” Id. at 1293. 72 672 F. Supp. 1531, 1537-38 (N.D. Cal. 1987). See also Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (defendant liable for torture committed by soldiers acting under his instructions, authority, direction and control and within the scope of the authority granted by him). 73 886 F. Supp. 162, 171-75 (D. Mass. 1995). 74 Id. at 171. 75 Id. at 172-73. 76 349 F. Supp. 2d 1258 (N.D. Cal. 2004). 77 Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002). 71

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demonstrate that it is not necessary to prove that the higher official or commander ordered the violations or even had actual knowledge of them. Mere presence in a chain of command, however, without proving the requirements of the three-prong test for command responsibility, would not be sufficient to hold a commander liable. In the absence of actual knowledge, it must be alleged that the commander should have known what his troops were doing and failed to take any action to stop them or to punish those responsible. This element can be proved by showing that the defendant should have known the abuses were occurring based on evidence that subordinates were engaged in a pattern, policy, or practice of abuses. The theory of command responsibility applies equally to military and civilian superiors.78 The post-World War II trials, for instance, especially the International Military Tribunal for the Far East (the Tokyo tribunal), found that non-military superiors could be held criminally responsible for crimes committed by their subordinates. The Tokyo tribunal held the Japanese foreign minister and prime minister criminally responsible for breaching their duty to take appropriate steps to prevent and punish war crimes committed by their subordinates, the Japanese troops.79 The 1977 Additional Protocol I to the Geneva Conventions and the statutes of the International Criminal Tribunal for both the former Yugoslavia (ICTY) and Rwanda (ICTR) refer to “superiors” and not to military commanders alone. Similarly, the Statute for the International Criminal Court expressly provides for civilian superiors’ responsibility in Article 28(b).80 Both the Trial and Appeals Chambers of the ICTY confirmed this principle in the Celebici case and specifically stated that “the applicability of the principle of superior responsibility . . . extends not only to military commanders but also to individuals in non-military positions of superior 78 See Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004). See also Greg R. Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court, 25 YALE J. INT’L L. 89 (2000). 79 The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, reprinted in 20 THE TOKYO WAR CRIMES TRIAL 49 (R. John Pritchard & Sonia Magbanua Zaide eds., 1981). 80 Article 28 of the ICC Statute distinguishes between the command responsibility of military commanders and other non-military superiors. The liability of military commanders for the human rights violations of those under his or her command is broader then that of civilian officials. For military commanders the standard is “either knew or, owing to the circumstances at the time, should have known,” while for civilian superiors there is liability if they “knew, or consciously disregarded information which clearly indicated” that their subordinates were about to commit crimes.

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authority.”81 In Prosecutor v. Aleksovski, the ICTY found a civilian guilty of crimes committed by prison guards under the doctrine of command responsibility.82 The civilian had been appointed by the minister of justice to be warden of a prison camp. U.S. courts have held that civilian superiors are liable for the actions of their subordinates, as are military commanders. In Doe v. Liu Qi, two Chinese governmental officials were found responsible for violations of Falun Gong practitioners’ rights under the doctrine of command responsibility.83 The court quoted an ICTR decision explaining that the doctrine extends beyond military commanders to “encompass political leaders and other civilian superiors in positions of authority” and that “[t]he crucial question [is] not the civilian status of the accused, but of the degree of authority he exercised over his subordinates.”84 Political leaders and other civilian superiors in position of authority, therefore, clearly are not exempt from liability for violations committed by their subordinates in ATS and TVPA litigation. 3.

Complicity in the Acts of Others

Increasingly, plaintiffs litigate ATS claims not only against the government officer or soldier who committed particular human rights violations, but against those who are complicit in the violations because they assist in or enable their commission. The degree to which individuals can be held liable for abuses committed by others has been the central issue in many ATS cases. Aiding and abetting, conspiracy, joint venture, agency, and reckless disregard have all been found to be viable theories of liability in ATS opinions. However, at least some of these theories remain hotly contested, especially since the Sosa decision, and will likely be the subject of a number of appellate decisions in the next few years. 81 Prosecutor v. Delalic, Mucic, Delic, Landzo (The Celebici case), Case No. IT-96-21, Judgment, ¶ 363 (Nov. 16, 1998). 82 Prosecutor v. Aleksovski, Case No. IT-95-14/1, Judgment (June 25, 1999). 83 Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004). The two defendants were a mayor and a Deputy Provincial Governor. 84 Id. at 1333 (quoting Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, ¶¶ 209, 213-16 (May 21, 1999)).

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a.

Aiding and Abetting

i.

The ATS

The historical application of the ATS establishes that liability for aiding and abetting violations of international law was well accepted by the founding generation. A 1795 opinion issued by Attorney General Bradford, interpreting the ATS, stated that the statute covered liability for “committing, aiding, or abetting” violations of the laws of war.85 With reference to U.S. citizens who had aided and abetted a French fleet in plundering British ships, he wrote that “there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit” under the ATS.86 Additionally, in Talbot v. Jansen,87 the Supreme Court held that a French citizen who had aided a U.S. citizen in illegally capturing a Dutch ship had acted in contravention of the law of nations and was civilly liable for the value of the captured assets. Moreover, Blackstone also recognized that those who aided and abetted piracy, a paradigmatic ATS violation, were themselves liable as pirates despite the fact that there was no treaty or law of nations that defined “aiding and abetting piracy.”88 Prior to the Court’s opinion in Sosa, numerous courts, without exception, found that defendants in ATS cases could be held liable for aiding and abetting violations of the law of nations.89 The pre-Sosa, Ninth Circuit opinion in Unocal articulated the aiding and abetting standard derived from customary international law that has largely been adopted by later courts.90 The Unocal majority found the standard for the actus reus, or act, of aiding or abetting to be “knowing practical assistance or encouragement that has a substantial effect on 85

Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795). Id. at 58-59. 87 3 U.S. (3 Dall.) 133 (1795). 88 4 WILLIAM BLACKSTONE, COMMENTARIES *68. 89 See, e.g., Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 99-100 (D.D.C. 2003); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355-56 (N.D. Ga. 2002); Eastman v. Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1091 (S.D. Fla. 1997); Carmichael v. United Tech. Corp., 835 F.2d 109, 113-14 (5th Cir. 1988). 90 Doe v. Unocal Corp., 395 F.3d 932, 950-51 n.26 (9th Cir. 2002). Although this decision was vacated after the Ninth Circuit agreed to hear the case en banc, the standard it enunciated is often cited by other courts. 86

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the perpetration of the crime.”91 The majority also found that the applicable international law standard for mens rea, or mental state, was not an intent to commit the offense, but rather knowledge that the offense would occur.92 The court found that the appropriate international law standard for aiding and abetting could be derived from the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), since the statutes creating those tribunals limit them to prosecuting violations of customary international law. The useful discussion of the aiding and abetting standard is contained in the ICTY’s decision in Prosecutor v. Furundzija, in which a military officer was found responsible for rape and other assault committed by soldiers under his command.93 Courts looking to international law as part of their federal common law analysis may also consider “general principles of law recognized by civilized nations” as a source of international law.94 Legal systems in the common law 91

Id. at 950-51 n.26. A concurring opinion by Judge Reinhardt rejected the use of international standards and urged that federal common law standards be used. Id. at 970 (Reinhardt, J., concurring). The standard of substantial, knowing practical assistance is also supported by the Restatement (Second) of Torts Section 876 (b), which explicitly recognizes an aidingand-abetting standard for liability: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. 92 Doe v. Unocal Corp., 395 F.3d 932, 953 (9th Cir. 2002). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending) (finding that aiding and abetting required evidence of intent based on language in the Rome Statute and the court’s view that international law, and not federal common law, provided the standard for all theories of liability). The Presbyterian Church decision goes against the great weight of authority, which requires plaintiffs to prove knowledge, not intent. 93 IT-95-17/1-T (ICTY, Dec. 10, 1998), reprinted in 38 I.L.M. 317 (1999). See Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1356 (N.D. Ga. 2002); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1158-59 (11th Cir. 2005); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 54 (S.D.N.Y. 2005); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 323-24 (S.D.N.Y. 2003). 94 See Statute of the International Court of Justice, art. 38(1)(c). See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 102(1)(c) (1987) (providing that “[a]

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tradition, civil law tradition, and the Islamic law tradition all routinely impose “indirect” liability for contributing to or causing damage to another person.95 Although the precise criteria for secondary liability vary, at a minimum the common principle—consistent with the international standard and domestic tort standard—is that knowingly providing substantial assistance in the commission of wrongful conduct triggers civil liability. The debate as to peripheral issues surrounding the aiding and abetting standard as articulated by the international tribunals has, thus far, proven to be of little significance. The court in Presbyterian Church of Sudan v. Talisman Energy, Inc., for example, dismissed the defendants’ evidence of inconsistencies between the ICTY and the ICTR trial courts regarding the mens rea standard for aiding and abetting liability, specifically whether moral support was included under the standard.96 The district court called this a “peripheral disagreement” that did not detract from the well-established core principles of aiding and abetting liability, under which liability could be imposed for “knowing practical assistance or encouragement which has a substantial effect on the perpetration of the crime.”97 Although the issue of indirect liability was not before the Court in Sosa, the Court’s holding—that federal common law provides the cause of action in ATS cases98 —provides some guidance as to how courts are to consider issues of indirect liability. Under the federal common law approach, courts look to the historical context and application of the ATS,99 the text and legislative history of rule of international law is one that has been accepted as such by the international community of states . . . by derivation from general principles common to the major legal systems of the world”). 95 See generally, W.V.H. ROGERS ED., UNIFICATION OF TORT LAW: MULTIPLE TORTFEASORS (2004); H. ODA, JAPANESE LAW 211 (1999); R. YOUNGS, ENGLISH, FRENCH, AND GERMAN COMPARATIVE LAW 288-89 (1998). 96 374 F. Supp. 2d 331 (S.D.N.Y. 2005). 97 Id. at 340. 98 While Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004), established that the underlying norm in ATS cases was to be defined with reference to international law, the Court went on to hold that it was the federal common law that provided the cause of action in ATS cases. Id. at 724. See Chapters 1-3. 99 See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1174 n.6 (C.D. Cal. 2005); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 117 (S.D.N.Y. 2005).

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analogous statutes,100 Restatements,101 contemporary case law,102 and international law.103 The majority of courts in the wake of Sosa have looked for evidence of aiding and abetting liability in these traditional sources of federal common law, relying on a long line of precedent dating back as far as the founding of the Republic.104 These courts, have, by and large, adopted the position of the pre-Sosa decision in Unocal. Both circuits to consider the issue post-Sosa have determined that the ATS permits claims to proceed on indirect theories of liability, including aiding and abetting. In Cabello v. Ferna´ndez-Larios, the Eleventh Circuit affirmed the district court’s jury instruction, which provided that a Chilean military officer who traveled with General Arellano’s “Caravan of Death” could be held liable for aiding and abetting torture and extrajudicial killing if he “substantially assisted some person or persons who personally committed or caused the wrongful acts” and “knew that his actions would assist in the legal or wrongful activity at the time he provided the assistance.”105 While substantial assistance is largely a factual inquiry, the Cabello court found sufficient plaintiffs’ evidence that the defendant participated in selecting the prisoners who would be killed. The Eleventh Circuit reaffirmed this holding in Aldana v. Del Monte Fresh Produce, N.A., Inc.106 100 See Cabello-Barrueto v. Ferna´ndez-Larios, 205 F. Supp. 2d 1325, 1333 (S.D. Fla. 2002); Doe v. Saravia, 348 F. Supp. 2d 1112, 1149 (E.D. Cal. 2004); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002). 101 See Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 10799, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822; Doe v. Unocal Corp., 395 F.3d 932, 951 (9th Cir. 2002). 102 See In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 53 (S.D.N.Y. 2005); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002). 103 See, e.g., id. at 1356 (relying on Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ¶¶ 192-249 (Dec. 10, 1998), in support of its definition of aiding and abetting as knowing, practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime). 104 See, e.g., In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 117 (S.D.N.Y. 2005); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005), Cabello-Barrueto v. Ferna´ndez-Larios, 205 F. Supp. 2d 1325 (S.D. Fla 2002). 105 402 F.3d 1148, 1158 (11th Cir. 2005). 106 416 F. 3d 1242, 1247-48 (11th Cir. 2005) (“a claim for state-sponsored torture under the Alien Tort Act or the Torture Victim Protection Act may be based on indirect liability as well as direct liability”).

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The Ninth Circuit discussed vicarious liability standards in Sarei v. Rio Tinto, PLC, a case brought by residents of Bougainville, Papua New Guinea, for numerous violations of international law arising out of the defendant’s mining operations and the ten-year civil conflict that followed an uprising at the mine. The Ninth Circuit indicated that theories of vicarious liability are applicable in the ATS context. As the court stated, “[a] predicate question is whether, post-Sosa, claims for vicarious liability for violations of jus cogens norms are actionable under the ATCA. . . . Courts applying the ATCA draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.”107 The court went on to cite the Talbot decision, which applied aiding and abetting liability to an international law violation108 and a 1795 opinion of the Attorney General, which states that “those who commit[], aid[], or abet[] hostilities” have “render[ed] themselves liable to punishment under the law of nations.”109 With its inquiry firmly rooted in the federal common law, the Ninth Circuit pointed to the historical acceptance of aiding and abetting liability for violations of international law, noting that Congress had passed a statute criminalizing aiding and abetting for piracy, one of the paradigmatic ATS causes of action.110 District courts have largely followed suit in adopting the federal common law approach, looking both to domestic law and international law in concluding that the ATS permits claims based on aiding and abetting liability. For instance, in Doe v. Saravia, a case arising out of a death squad officer’s role in the assassination of Archbishop Romero in El Salvador, the court echoed the standard of aiding and abetting liability adopted by the International Criminal Tribunal for the former Yugoslavia, noting that “[p]rinciples of accomplice liability are well-established under international law. . . . [Under the ICTY], it is sufficient that the accomplice knows that his or her actions will assist the perpetrator in the commission of the crime.”111 While cases have been brought 107 Civ. Nos. 02-56256, 02-56390, 2007 WL 10799, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 108 Id. (citing Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 156-58, 167-68 (1795)). 109 Id. (quoting 1 Op. Att’y Gen. 57, 59 (1795)). 110 Id. 111 348 F. Supp. 2d 1112, 1149 (E.D. Cal. 2004) (citing Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002)). See also Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (finding that the ATS permits claims based on aiding and abetting liability); Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005) (same); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (same); Doe v. Saravia, 348 F. Supp. 2d 1112 (C.D. Cal. 2004) (same).

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against both state and private individuals on a theory of aiding and abetting liability, the aiding and abetting jurisprudence has largely been developed in the context of the corporate cases, which are discussed in greater detail in Chapter 12. Despite the previously unbroken line of precedent permitting aiding and abetting liability for ATS cases, a few district courts have recently taken the minority view that treats aiding and abetting not as an ancillary theory of liability, but rather as an element of the “law of nations” analysis.112 This position would require plaintiffs to show that aiding and abetting a particular international law violation is itself a violation of the law of nations that is “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.” These cases also assume that plaintiffs could not meet that burden, but do so without examining international law sources on state action. The first of these cases was In re South African Apartheid Litigation, in which plaintiffs alleged that the defendants had aided and abetted the South African government’s policy of apartheid by participating alongside state police to repress a labor strike; working with the government to establish citizen commando forces; and conducting joint business-military strategy meetings to defeat apartheid resistance.113 Despite these allegations, the court found that there was “little that would lead this court to conclude that aiding and abetting international law violations is itself an international law violation that is universally accepted as a legal obligation.”114 The South African Apartheid decision relied in part on the Supreme Court’s decision in Central Bank of Denver v. First Interstate Bank of Denver, which found that aiding and abetting liability in civil cases should not be inferred where Congress has not explicitly provided for such liability.115 The district court stated that its refusal to recognize aiding and abetting liability was “heedful to the admonition in Sosa that Congress should be deferred to with respect to innovative interpretations of” the ATS.116 The district court’s reliance 112

See Corrie v. Caterpillar Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (appeal pending); Doe v. Exxon Mobile Corp., Civ. No. 01-1357, 2005 U.S. Dist. LEXIS 23557 (D.D.C. October. 14, 2005); In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004) (appeal pending). 113

Id.

114

Id. at 549-51.

115

511 U.S. 164 (1994).

116

In re South African Apartheid Litig., 346 F. Supp. 2d 538, 550 (S.D.N.Y. 2004). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003).

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on Central Bank, however, has been criticized by other courts that pointed out that the statutory scheme at issue in Central Bank was dramatically more comprehensive and specific than the ATS—a statute with a cause of action derived from federal common law.117 The issue boils down to congressional intent, and it is clear that the drafters of the ATS expected that common law rules would govern ATS litigation.118 The court in Bowoto v. Chevron Corp. adopted the federal common law approach to the question of indirect liability, and specifically held that such theories were equally applicable for violations of international norms requiring state action and those which can be violated directly by private parties.119 The court noted that there were important policy reasons to extend indirect liability under international law to private actors who aid and abet the violations of state actors. ii.

Other Statutes

Although the TVPA does not explicitly grant a cause of action for aiding and abetting, courts have relied on the language of the statute, as well as the legislative history of the act, as evidence that Congress intended to extend liability beyond primary violators to those who aid and abet the commission of torture or extrajudicial killing. The TVPA provides for liability for any individual who “subjects” another to torture or extrajudicial killing.120 In Wiwa v. Royal Dutch Petroleum Co., the court found that the dictionary definition of “subject” means to cause someone “to undergo the action of something specified,” and reasoned that “‘individuals who cause someone to undergo’ torture or extrajudicial killing, as well as those who actually carry out the deed, 117

Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005). See also In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 56 (E.D.N.Y. 2005) (rejecting the defendant’s claim that “these claims must be dismissed because Congress has not authorized aiding and abetting liability under the ATS.”); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1172 (C.D. Cal. 2005) (finding that “Central Bank does not indicate that aiding and abetting liability is unavailable under the TVPA”). 118 In analogous situation, the U.S. government submitted an amicus brief in a case filed under the Anti-Terrorism Act (ATA), arguing that the statute encompassed aiding and abetting liability, even though their was no specific mention of it in the statute. Brief for the United States as Amicus Curiae Supporting Affirmance, Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002), available at www.ccr-ny.org/humanrightsbook. 119 2007 WL 2349341, at *6-7 (N.D. Cal. Aug. 14, 2007). 120 See 28 U.S.C. § 1350 (note), §§ 1(A)(1), 1(A)(2).

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could be liable under the TVPA.”121 Courts have also looked to the legislative history in concluding that Congress intended the TVPA to extend to aiding and abetting liability.122 As the Senate Judiciary explained in a Committee Report, the TVPA was intended to permit suits “against persons who ordered, abetted, or assisted in torture.”123 Courts deciding cases arising under the Anti-Terrorism Act (ATA) have also recognized aiding and abetting liability. In Boim v. Quranic Literacy Institute, the parents of a U.S. citizen killed in Israel by the terrorist group Hamas brought suit against various organizations that funded Hamas.124 Interestingly, the U.S. government submitted an amicus brief in Boim arguing that the ATA, which had no specific language permitting aiding and abetting liability, did in fact provide for aiding and abetting liability.125 In support of its argument, the government cited to the Restatement (Second) of Torts Section 876(b).126 While the court agreed that the statute provided for aiding and abetting liability, it went on to clarify that funding a terrorist organization could meet the definition of aiding and abetting an act of terrorism “so long as knowledge and intent are also shown.”127 Although the court in Boim did not explicitly adopt the Restatement standard for aiding and abetting liability, other courts adjudicating ATA claims have done so. In Linde v. Arab Bank, a case involving a bank’s activities in administering death benefits to families of Palestinians killed in suicide bombings, the court permitted the plaintiffs to proceed on their aiding and 121

Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293, at *50 (S.D.N.Y. Feb. 22, 2002). Id. See also Hilao v. Estate of Marcos, 103 F.3d 767, 779 (9th Cir. 1996); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1158 (11th. Cir. 2005); Arar v. Ashcroft, 414 F. Supp. 2d 250 (S.D.N.Y. 2006). 123 S. REP. NO. 249, 102d Cong., 1st Sess. (1991). But see In re South African Apartheid Liab. Litig., 346 F. Supp. 2d 538, 555 (S.D.N.Y. 2004) (finding that “creating aider and abettor liability for private actors not acting under color of law would be inconsistent with the statute and precluded by Central Bank”). 124 291 F.3d 1000 (7th Cir. 2002). 125 See Brief for the United States as Amicus Curiae Supporting Affirmance, Boim v. Quranic Literacy Inst., available at www.ccr-ny.org/humanrightsbook (citing Restatement (Second) of Torts Section 876(b) (1979) and finding that “relevant background principles . . . plainly extend tort liability not only to defendants who actually commit a tort, but also those who aid and abet in its commission”). 126 Id. at 10. 127 Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1015 (7th Cir. 2002). 122

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abetting claims under all three theories of aiding and abetting listed in Section 876 of the Restatement (Second) of Torts.128 Courts hearing ATA claims arising out of the September 11, 2001, attacks have similarly recognized claims for aiding and abetting liability. Plaintiffs in Burnett v. Al Baraka Investment & Development Corp. brought suit against a number of entities and persons for aiding and abetting the perpetrators of the attacks.129 In Burnett, the court relied on the civil aiding and abetting standard articulated by the D.C. Circuit in Halberstam v. Welch130 to permit the plaintiffs to go forward with their aiding and abetting claims.131 Under this standard, aiding and abetting liability requires that: “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides assistance; and (3) the defendant must knowingly and substantially assist the principle violation.”132 In finding civil aiding and abetting liability, the court in Halberstam drew heavily on the Restatement (Second) of Torts Section 876(b).133 Finally, aiding and abetting is also a viable theory of liability under the FSIA, though in FSIA cases, the substantive rules of decision for tort claims against foreign states are typically provided by the law of each plaintiff’s domicile as of the date of the injury.134 In In re Terrorist Attacks on September 11, 2001, the court addressed the liability of three defendants alleged to have 128

384 F. Supp. 2d 571, 584 (E.D.N.Y. 2005). Restatement (Second) of Torts Section 876 provides: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. 129 274 F. Supp. 2d 86 (D.D.C. 2003). 130 705 F.2d 472 (D.C. Cir. 1983). 131 Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 104-05 (D.D.C. 2003). 132 Id. See also In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765, 798 (S.D.N.Y. 2005) (noting that Halberstam and Boim “explain liability under the ATA and for aiding and abetting and conspiracy”). 133 Halberstam v. Welch, 705 F.2d 472, 488 (D.C. Cir. 1983). 134 Abur v. Republic of Sudan, 437 F. Supp. 2d 166, 171 (D.D.C. 2006).

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aided and abetted the attacks.135 In that case, the court turned to New York law, finding that “aiding and abetting [is a variety] of concerted action liability” and stating that “aiding and abetting requires that the defendant have given substantial assistance or encouragement to the primary wrongdoer.”136 While this standard is, at least in part, in keeping with the aiding and abetting standard in ATS cases, plaintiffs bringing FSIA claims should be mindful of the varying tort standards in their respective jurisdictions. b.

Conspiracy and Joint Criminal Enterprise

In addition to aiding and abetting, every court that has addressed the issue has found that liability for claims under the ATS extends to conspiracies.137 Principles of conspiracy liability are well established in customary international law.138 The Statute of the International Military Tribunal, which was established to try Nazi war criminals, states that “leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such a plan.”139 In Cabello v. Ferna´ndez-Larios, the court found that a defendant could be held liable based on an alleged conspiracy if the plaintiff proved that: (1) two or more persons agreed to commit a wrongful act; (2) the defendant joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it; and (3) one or more of the violations were committed by someone who was a member of the conspiracy and acted in furtherance of the conspiracy.140 While plaintiffs are required to plead the existence of a 135

349 F. Supp. 2d 765, 795-800 (S.D.N.Y. 2005). Id. at 798. 137 See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F. 3d 1242 (11th Cir. 2005); Carmichael v. United Tech Corp., 835 F.2d 109, 113-14 (5th Cir. 1988); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1091-92 (S.D. Fla. 1997); Doe v. Unocal Corp., 963 F. Supp. 880, 889-90 (C.D. Cal. 1997). 138 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Cabello-Barrueto v. Ferna´ndez-Larios, 205 F. Supp. 2d 1325, 1333 (S.D. Fla. 2002). 139 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal, art. 6, 82 U.N.T.S. 279. 140 402 F.3d 1148, 1159 (11th Cir. 2005). 136

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conspiracy, plaintiffs are not required to know all of the details of the conspiracy to adequately plead its existence.141 Most recently, the district court in Presbyterian Church of Sudan v. Talisman Energy, Inc. found that conspiracy was not a viable theory of liability unless it was a recognized theory of liability in international law.142 Although the court found that conspiracy to commit genocide was actionable, it did not allow conspiracy theories with respect to crimes against humanity or war crimes.143 The decision rested on two planks: the district court’s decision to apply international law norms to this issue, not federal common law; and, the Supreme Court’s holding that international humanitarian law recognizes conspiracy liability for a limited range of violations.144 Another variation of conspiracy in international law is the theory of “joint criminal enterprise.” Joint criminal enterprise liability provides for liability in cases involving a common design to pursue a course of conduct where: “(1) the crime charged was a natural and foreseeable consequence of the execution of that enterprise, and (2) the accused was aware that such a crime was a possible consequence of the execution of the enterprise and, with that awareness, participated in the enterprise.”145 In Prosecutor v. Tadic, for example, the court demonstrated that joint criminal enterprise is a well-established theory of liability going back at least to Nuremberg.146 While no court has yet adjudicated 141

Arar v. Ashcroft, 414 F. Supp. 2d 250, 262 (S.D.N.Y. 2006).

142

453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). The court did not consider whether the international law theory of joint criminal enterprise would apply to plaintiffs’ crimes against humanity and war crimes claims. 143

Id. at 663-64 (“[I]nternational law applies the charge of conspiracy in only two circumstances: conspiracy to commit genocide and common plan to wage aggressive war.”) (citing Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2784 (2006)). See also Amicus Curiae of Specialists in Conspiracy and International Law in Support of Petitioner, Hamdan v. Rumsfeld, 2005 U.S. BRIEFS 184 (2006) (arguing that conspiratorial agreements are not punishable under the law of war). 144 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 321 (S.D.N.Y. 2003) (“[C]ourts must look to international law to determine the relevant substantive law.”). 145 Prosecutor v. Bradjanin, Case No. IT-99-36-T, ¶ 265 (ICTY Trial Chamber, Sept. 1, 2004). 146

Case No. IT-94-1-A, ¶¶ 204-6, n.53 (ICTY Appeals Chamber, July 15, 1999). See also Brief of Amicus Curiae on Civil Conspiracy and Joint Criminal Enterprise in Support of Plaintiffs-Appellants and In Support of Reversal of the District Court Opinion, Presbyterian Church of the Sudan v. Talisman, No. 07-0016 (2d Cir. filed Mar. 3, 2007), available at www.ccr-ny.org/humanrightsbook.

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an ATS or TVPA claim arising under a theory of joint criminal enterprise, the Supreme Court cited the ICTY’s joint criminal enterprise theory of liability with approval.147 Plaintiffs pleading conspiracy theories of liability should consider also pleading a joint criminal enterprise theory, particularly with respect to claims other than genocide. c.

Traditional Tort Theories of Liability

Because the ATS is a tort statute, traditional theories of tort liability that are well established as part of the federal common law also provide a basis for liability. The question of whether to use principles of aiding and abetting liability or traditional tort theories of liability such as agency, joint venture, and reckless disregard was at the very heart of the dispute in Doe v. Unocal Corp.148 i.

Agency

Some plaintiffs have sought to hold defendants liable under an agency theory of liability. In Unocal, Judge Reinhardt’s concurring opinion would have permitted Unocal to be held liable for the acts of the Burmese military because the military acted as Unocal’s agent.149 Plaintiffs who allege an agency theory of liability must demonstrate the following elements: “(1) there must be a manifestation by the principal that the agent shall act for him; (2) the agent must accept the undertaking; and (3) there must be an understanding between the parties that the principal is to be in control of the undertaking.”150 The issue of whether a corporate defendant had control over the agent is often the determining factor in establishing whether the defendant can be found liable on an agency theory of liability. In finding that there are well-settled theories of vicarious liability under federal common law, the Ninth Circuit in Sarei v. Rio Tinto, PLC, cited to the Restatement of Agency.151 The court found that by alleging that Rio Tinto 147

Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2785 n.40 (2006).

148

395 F.3d 932 (9th Cir. 2002). The court in Unocal split 2-1 in favor of applying the international law standard for aiding and abetting liability. In a concurring opinion, Judge Reinhardt stated that he did “not agree that the question of Unocal’s tort liability should be decided by applying any international law test at all.” Id. at 970. He went on to state that “the ancillary legal question of Unocal’s third-party liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard.” Id. 149

Id. at 972. Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1239 (C.D. Cal. 2004). 151 Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 150

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directed or aided the government’s commission of the international law violations, the plaintiffs had sufficiently alleged Rio Tinto’s liability to establish ATS subject matter jurisdiction.152 Conversely, in Sinaltrainal v. Coca-Cola Co., the court declined to impose liability on Coca-Cola U.S.A. and Coca-Cola Colombia for the actions of the Colombian bottling plant manager who was working with the paramilitary to destroy union activity at the plant, because Coca-Cola did not have control over the labor practices of the bottling plant.153 As the court stated, Nothing in the agreement [between Coca Cola and the bottling plant] gives Coca Cola the right, obligation, or much less the duty . . . to control the labor policies or ensure employee’s security at Bebidas. The . . . Agreement clearly refutes Plaintiffs’ allegation that Coca-Cola had total control. Without such control, Plaintiffs cannot tie the Coca-Cola Defendants with their alleged alter egos or agents.154 While several plaintiffs have based their ATS claims on a theory of agency liability,155 there are few reported cases that discuss the viability of agency liability. In most cases, courts appear to assume that agency is a viable theory. They then discuss whether the alleged agency relationship affects other legal determinations, such as whether an agency relationship between a private actor and a state actor effectively demonstrates that the action was taken under color of law.156 Lawyers should bear in mind, however, that claims alleging that a private actor is acting as an agent of a foreign government may be subject to dismissal under the FSIA, an issue discussed in Chapter 14. ii.

Joint Venture

Under traditional common law tort principles, a member of a joint venture is liable for the acts of its co-adventurers. Several cases have been brought against defendants who have entered into agreements with governments for resource extraction on a joint venture theory of liability. In these cases, defendants are typically alleged to have committed international law violations with the aim of furthering or protecting their venture. In Mujica v. Occidental 152

Id. at *5-6. 256 F. Supp. 2d 1345 (S.D. Fla. 2003). 154 Id. at 1354-55. 155 Sarei v. Rio Tinto, PLC., 221 F. Supp. 2d 1116 (C.D. Cal. 2002); Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D. Ca. 2004); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005). 156 Id. 153

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Petroleum Corp., for instance, the court applied a joint venture theory of liability to plaintiffs’ allegations that, in an effort to protect the oil company’s operations from insurgents, the defendant and a security company entered into a joint venture with the Colombian military to raid and bomb their town, resulting in the deaths of plaintiffs’ family members.157 It is well-established in tort law that courts will find joint liability where the parties: (1) intended to form a joint venture; (2) share a common interest in the subject matter of the venture; (3) share the profits and losses of the venture; and (4) have joint control or the joint right of control over the venture.158 Claims brought under a joint venture theory of liability, however, may be subject to affirmative defenses, such as the act of state doctrine. In Sarei v. Rio Tinto, PLC, the district court found that, given the codification of the government’s relationship with the defendant corporation, there was a strong likelihood that the court would have to assess the legality of the government’s official conduct, which would be precluded under the act of state doctrine.159 Plaintiffs may be able to overcome this defense by arguing that particular violations of international law are not recognized as official acts of state. On appeal, a Ninth Circuit panel reversed the district court’s finding that “the alleged racial discrimination constituted an act of state which the act of state doctrine could insulate from scrutiny,” because “acts of racial discrimination are violations of jus cogens norms.”160 The court went on to state that “[i]nternational law does not recognize an act that violates jus cogens as a sovereign act.”161 iii.

Reckless Disregard

Plaintiffs attempting to bring negligence or negligence per se claims under the ATS have been largely unsuccessful.162 However, there is limited case law that suggests that plaintiffs may be able to bring ATS claims based on a theory 157

381 F. Supp. 2d 1164 (C.D. Cal 2005). See also Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997). 158 W. KEETON, PROSSER & KEETON ON TORTS, § 72 at 518 (5th ed. 1984). 159 221 F. Supp. 2d 1116 (C.D. Cal. 2002), rev’d, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 160 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *11 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 161 Id. 162 See Frazer v. Chi. Bridge & Iron, Civ. No. 05-3109, 2006 U.S. Dist. LEXIS 23367 (S.D. Tex. Mar. 27, 2006); Arndt v. USB AG, 342 F. Supp. 2d 132 (E.D.N.Y. 2004).

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of reckless disregard. In Unocal, plaintiffs alleged that Unocal had actual knowledge that the Burmese military would likely engage in forced labor and other human rights abuses if it undertook certain functions and that, nonetheless, Unocal desired the military to perform those functions in connection with the Yadana Pipeline Project. Both the majority and concurrence found those allegations were sufficient to establish reckless disregard.163 As Judge Reinhardt explained: Federal common law contains two variants of the theory of recklessness or reckless disregard. . . . The first is traditional civil-law recklessness . . . [which applies to] a person who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known. The second version is “subjective recklessness,” also referred to as “willful recklessness.” This doctrine requires actual knowledge of a substantial risk which the defendant subsequently disregards.164 Plaintiffs who allege reckless disregard are not required to prove that the defendant intended to violate international law, only that the defendant knew of a substantial risk that he subsequently disregarded. 163

Doe v. Unocal Corp., 395 F.3d 932, 974 (9th Cir. 2002) (Reinhardt, J., conc.). Although this decision was vacated after the Ninth Circuit agreed to hear the case en banc, the standard it enunciated is often cited by other courts. 164 Id. (internal citations omitted).

CHAPTER 11 WHO CAN BE SUED II: U.S. AND LOCAL GOVERNMENT DEFENDANTS

A. INTRODUCTION Until the mid-1990s, international human rights litigation in U.S. courts focused primarily on lawsuits against foreign government officials sued for violations committed outside of the United States. However, neither the Alien Tort Statute (ATS)1 nor the Torture Victim Protection Act (TVPA)2 is limited to suits against foreign officials. Under the ATS, the plaintiff must be an “alien” but the defendant may be a U.S. citizen. Under the TVPA as well, the defendant may be a U.S. citizen, but must have acted “under color of law, of any foreign nation.”3 Since 2001, a growing number of lawsuits have been filed against private U.S. citizens, U.S.-based corporations, and the U.S. government and its employees, for violations committed both in the United States and abroad.4 Efforts to litigate against the federal government and federal officials, the subject of this chapter, face daunting legal obstacles. Given the difficulties, plaintiffs may prefer to proceed instead under the Constitution or U.S. civil rights laws, which may provide alternative means of redress for abuses committed within U.S. territory.5 Victims of torture, summary execution, or 1

28 U.S.C. § 1350. 28 U.S.C. § 1350 (note). 3 TVPA, § 2(a). 4 For a brief history of human rights claims against U.S. officials, see Sandra Coliver, Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 EMORY INT’L L. REV. 169 (2005). 5 The extent to which the U.S. Constitution applies extraterritorially to protect U.S. citizens or non-citizens has been the subject of much controversy recently, particularly in litigation arising out of the “war on terror.” Plaintiffs have argued that some constitutional protections apply to places where the United States maintains full control, including the Guantanamo Bay detention camp and Abu Ghraib prison in Iraq, an issue yet to be resolved by the Supreme Court. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert granted 127 S. Ct. 3078 (2007) (holding that enemy combatants detained at Guantanamo Bay do not have constitutional rights); In re Iraq and Afghanistan Detainees 2

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other international violations committed under the color of state or local authority may seek relief in state or federal court under 42 U.S.C. Section 1983.6 Individual federal officials may be sued directly under the U.S. Constitution in a Bivens action.7 Plaintiffs should also consider the possibility of filing state statutory or common law claims.8 Litigation, 2007 WL 926145, at *6-13 (D.D.C. Mar. 27, 2007) (appeal pending) (holding that aliens detained in Iraq and Afghanistan do not have Fifth or Eighth Amendment rights). 6 See, e.g., Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (holding that state officials can be sued for treaty violations under 28 U.S.C. Section 1331 and 42 U.S.C. Section 1983) (discussed further in Chapter 8); Wilkinson v. Austin, 545 U.S. 209 (2005) (finding that prisoners were entitled to procedural due process rights prior to their assignment to a “supermax” prison where they could be kept in solitary confinement in excess of 23 hours a day; the original complaint also contained arguments that U.S. civil rights law incorporated the international human rights standard prohibiting cruel, inhuman, or degrading treatment but none of the courts ruled on this argument). Under 42 U.S.C. Section 1988, a prevailing plaintiff in a Section 1983 action would also be entitled to attorney’s fees. Section 1983 actions are the subject of a vast and growing literature. For a useful summary, see 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION § 10 (4th ed. 2003); see also DAVID RUDOVSKY, ET AL., POLICE MISCONDUCT: LAW AND LITIGATION (3d ed. 2006). Such claims may also be actionable under state constitutions or statutes or state common law tort principles. A discussion of such possible claims is beyond the scope of this book. It is often the case, however, that litigants will bring all possible claims along with their human rights claims under the ATS or the TVPA. 7 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a claim for damages for constitutional violations). In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court found that the existence of the Federal Tort Claims Act (FTCA) did not preclude a Bivens action brought by a federal prisoner for damages for violation of his Eighth Amendment rights. Human rights plaintiffs, particularly in detention conditions cases, have also filed Bivens claims. See Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006) (appeal pending); Jama v. U.S.I.N.S., 343 F. Supp. 2d 338 (D.N.J. 2004); Turkmen v. Ashcroft, Civ. No. 02-2307, 2006 U.S. Dist. LEXIS 39170 (E.D.N.Y. June 14, 2006) (court allowed constitutional and FTCA claims to proceed, but dismissed ATS claims); Mirmehdi v. Ashcroft, Civ. No. 06-05055 (C.D. Cal. filed Aug. 14, 2006). The complications and limitations confronting Bivens actions are beyond the scope of this book. For a useful overview of Bivens claims, see CIVIL ACTIONS AGAINST THE UNITED STATES, ITS AGENCIES, OFFICERS AND EMPLOYEES, ch. 3 (2d ed. 2003) [hereinafter CIVIL ACTIONS AGAINST THE UNITED STATES]. 8 See Section G of this chapter.

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In some cases, however, international human rights claims may offer plaintiffs options that are not available through claims based on domestic causes of action. Moreover, applying international norms to the conduct of the U.S. government furthers the goals of universal coverage of international law. As a result, despite the hurdles, lawsuits alleging that U.S. government defendants have violated international human rights norms are likely to continue. This chapter addresses the complex legal doctrines governing ATS and TVPA litigation against the U.S. government and its employees. The chapter begins in Section B with a detailed discussion of sovereign immunity and the difficulties facing any lawsuit against the federal government and its officials. Subsequent sections address particular issues faced in such litigation: the political question doctrine; the application of the TVPA to federal officials; the state secrets doctrine; and the complications posed by the Military Commissions Act of 2006. A final section discusses suits against state and local officials. B. THE FEDERAL TORT CLAIMS ACT (FTCA) AND SOVEREIGN IMMUNITY 1.

Overview

Historically, the federal government was immune from all suits. The Federal Tort Claims Act (FTCA)9 supplies only a limited waiver of sovereign immunity. Unless an action is authorized by the FTCA or expressly excluded from sovereign immunity, the claim is barred. The central issue for claims against the federal government or federal officials, therefore, is whether such claims will be barred by sovereign immunity. Sovereign immunity for the U.S. government and its employees is defined as: •

9 10

The U.S. government: Under the doctrine of sovereign immunity, the U.S. government cannot be sued unless it has consented to suit.10 In 1946, Congress granted limited consent to suit against the United States by enacting the FTCA, which made the United States liable for certain torts (“negligent or wrongful acts”) of federal employees acting within the scope of their employment. As discussed below, however, the FTCA contains a variety of

28 U.S.C. §§ 1346(b), 2671-2680. See United States v. Smith, 499 U.S. 160 (1991).

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•

procedural requirements, exceptions and limitations that pose barriers to human rights litigation. Federal officials: The FTCA does not apply to suits against federal officials for acts undertaken outside of the scope of their authority or to suits for violations of the Constitution or of a federal statute that provides an explicit cause of action. However, under the Westfall Act, a 1988 amendment to the FTCA, suits against federal officials for all other actions taken within the scope of their authority will be transformed into FTCA suits against the United States.11 When a federal government employee is sued, the Westfall Act authorizes the Attorney General to certify that the employee was acting within the scope of his or her employment; the government then substitutes itself as the defendant in place of the employee. Once substituted as the defendant, the government’s immunities apply, even if the result is a complete bar to the claim.12

The statutory framework implementing sovereign immunity is complex.13 First, the FTCA provides that the federal courts have exclusive jurisdiction over claims against the United States for money damages for: personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.14 This provision incorporates key limitations. The statute constitutes a waiver of sovereign immunity for suits seeking money damages for personal injury or death, caused by the negligent or wrongful act or omission of a government 11

See Federal Employees Liability Reform and Tort Compensation Act (also known as the Westfall Act), 28 U.S.C. Section 2679, providing that the United States may substitute itself as the defendant in any tort claim brought against a government employee or agent acting within the scope of his or her authority, unless the claim alleges violations of the Constitution or a federal statute authorizes the action. See 28 U.S.C. § 2679(b)(2) (A), (B). 12 Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). 13 For a helpful treatise on FTCA litigation, see CIVIL ACTIONS AGAINST THE UNITED STATES, supra note 7. 14 28 U.S.C. § 1346(b)(1).

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employee who acted within the scope of employment, if a private person would be liable under the law of the place where the events took place. The final provision mandates that the law of the place where the act or omission occurred governs the claim. As a result, under the FTCA, the United States will be found liable for the actions of its officials or employees to the extent that such liability would obtain against a private defendant in the state where the action arose.15 The waiver of immunity is limited to the exact terms of the statute.16 Second, the waiver of immunity does not apply if a claim falls within one of a series of exceptions set forth in 28 U.S.C. Section 2680. That is, if a claim falls within an exception, there is no waiver of immunity, and the claim will be dismissed. Exceptions relevant to human rights claims include those based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused”17 ; certain intentional torts, including “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process” (unless committed by a law enforcement official)18 ; claims arising out of combatant activities during time of war19 ; and any claim arising in a foreign country.20 If a claim falls within one of the exceptions to liability, the claim must be dismissed. Third, if a government employee is sued as an individual defendant, the federal government can substitute itself as the defendant in the lawsuit, taking the place of the individual, who is then dismissed. Once the United States is the defendant, it may assert all of the defenses it has under the FTCA, even if the result is the dismissal of the lawsuit and the inability of the plaintiff to obtain any relief. However, substitution is not permitted when a federal employee is sued for a violation of the U.S. Constitution or pursuant to a statute authorizing the lawsuit (the “statutory exception” found in 28 U.S.C. Section 2679(b)(2)(B)). 15 As a result, basic issues about what tort claims are available and their scope is usually made by reference to state law and not based on uniform national standards. This basic FTCA principle may have significant implications for human rights litigation, especially the issue of the scope of employment under the FTCA, as discussed below. 16 “Waivers of sovereign immunity are strictly construed in favor of the sovereign.” CIVIL ACTIONS AGAINST THE UNITED STATES, supra note 7, § 2-11. 17 28 U.S.C. § 2680(a). 18 28 U.S.C. § 2680(h). 19 28 U.S.C. § 2680(j). 20 28 U.S.C. § 2680(k).

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This section, discusses the rules governing substitution by the U.S. government as the defendant in lawsuits filed against government officials; the requirement of exhaustion of administrative remedies; and the exceptions to FTCA liability as applied to human rights claims. 2.

Suits Against U.S. Government Officials and Substitution of the U.S. Government as Defendant

With two exceptions, the FTCA provides the exclusive remedy against U.S. government officials acting within the scope of their employment. The FTCA instructs the Attorney General to substitute the U.S. government in place of employees sued for wrongful acts causing personal injury or death: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.21 This section first addresses the two exceptions, followed by discussions of the substitution process and an analysis of the application of the “scope of authority” standard to egregious human rights violations. a.

The Statutory Claims Exception: Statutes and Treaties

The Westfall Act includes two exceptions that bar substitution.22 The first exception, for actions seeking damages for a constitutional violation by a government employee, is beyond the scope of this book. However, human rights claims for actions seeking damages for customary international law violations against U.S. officials could arguably fall within the second exception, which states that the exclusive remedy provision of the FTCA “does not extend or apply to a civil action against an employee of the government . . . which is 21

28 U.S.C. § 2679(d)(1). 28 U.S.C. Section 2679(b)(2) states that substitution “does not extend or apply to a civil action against an employee of the Government—(A) which is brought for a violation of the Constitution of the United States, or (B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 22

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brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.”23 Some plaintiffs have argued that the ATS is a statute authorizing an action against U.S. government employees and that ATS lawsuits thus trigger the statutory claims exception. In Alvarez-Machain v. United States, however, the Ninth Circuit held that the ATS does not fall within the statutory claims exception because “a claim under the [ATS] is based on a violation of international law, not of the [ATS] itself.”24 The Ninth Circuit decision relied on the Supreme Court’s analysis in United States v. Smith, which held that the statutory exception did not apply to claims of medical malpractice based on a statute that authorized certain negligence claims against federal doctors, because the negligence claims were not “brought for a violation” of the statute.25 This reasoning has been adopted by a number of district courts in recent years.26 Defendants have argued that the Supreme Court’s determination in Sosa that the ATS was only “jurisdictional”27 supported the conclusion that the ATS did not meet the requirements to serve as a statutory exception to the FTCA. However, the Sosa analysis actually helps distinguish the ATS from the analysis relied on by the Supreme Court in Smith. The plaintiffs in Smith did not allege a federal statutory claim: they relied instead on the Gonzalez Act,28 which limits the liability of military personnel for torts committed within the scope of their employment, claiming that their reliance on that act triggered the statutory claims exception of the FTCA.29 The Court held that the Gonzalez Act could not be “violated” because “nothing in the Gonzalez Act imposes any obligations or 23

28 U.S.C. § 2679(b)(2)(B). Alvarez-Machain v. United States, 331 F.3d 604, 631 (9th Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 25 499 U.S. 160, 174 (1991). 26 See In re Iraq and Afghanistan Detainees Litigation, 2007 WL 926145, at * 21 (D.D.C. Mar. 27, 2007) (appeal pending); Harbury v. Hayden, 444 F. Supp. 2d 19, 38-39 (D.D.C. 2006) (appeal pending); Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 38 (D.D.C. 2006); Turkmen v. Ashcroft, Civ. No. 02-2307, 2006 WL 1662663, at *49-50 (E.D.N.Y. June 14, 2006); Schneider v. Kissinger, 310 F. Supp. 2d 251, 266 (D.D.C. 2004), aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005); Elmaghraby v. Ashcroft, Civ. No. 041409, 2005 WL 2375202, at *34-35 (E.D.N.Y. Sept. 27, 2005). 27 Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). 28 10 U.S.C. § 1089. 29 Smith v. United States, 499 U.S. 160, 162 (1991). 24

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duties of care upon military physicians.”30 However, the ATS, unlike the Gonzalez Act, is intended to specifically create liability, not to limit it.31 In Sosa, the Supreme Court held that “the jurisdictional grant [of the ATS] is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”32 Further, the Supreme Court held that “positive law [such as the ATS] was frequently relied upon to reinforce and give standard expression to the ‘brooding omnipresence’ of the common law.”33 By giving “standard expression” to the common law, the ATS both incorporates those standards and imposes the duty of care required by the law of nations. Unlike the Gonzalez Act in Smith, which contained no reference to law or standards, the ATS codifies Congress’ intent to provide redress for violations of the law of nations. Congress has created a statutory liability by reference to another body of law—i.e., the “law of nations.” In contrast to the debate over the ATS and the statutory exception, the TVPA clearly falls within the exception. That is, the government cannot substitute as the defendant in place of an individual government official who is sued under the TVPA.34 However, other arguments raised by U.S. government defendants in TVPA claims are discussed below in Section D. Claims arising out of violation of the Religious Freedom Restoration Act35 should also be subject to the statutory claims exception. In Rasul v. Rumsfeld, for example, the court found that the protections of the law apply to detention 30

Id. at 174. In another context, the Racketeer Influenced and Corrupt Organizations Act (RICO) statute prohibits certain “racketeering activity,” 18 U.S.C. Section 1962(a), but incorporates the principles of state substantive law to define such activity under 18 U.S.C. Section 1961(1). Violations of the RICO provision fall within the statutory claims exception. Timberline Northwest, Inc. v. Hill, Civ. No. 96-35763, 1998 U.S. App. LEXIS 5453, at *5-6 (9th Cir. Mar. 17, 1998); Wright v. Linhardt, 2000 WL 92810, at *11, *13 (D. Or. Jan.18, 2000). 32 Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). 33 Id. at 722. 34 Alvarez-Machain v. United States, 331 F.3d 604, 631-32 (9th Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See also Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir. 2006) (assuming arguendo that the TVPA did not bar plaintiffs’ claims and affirming lower court dismissal on political question grounds). 35 42 U.S.C. §§ 2000bb-2000bb-4. 31

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facilities in Guantanamo Bay, Cuba, permitting plaintiffs to proceed with the claim that their religious rights were violated by abuses such as having their Korans flushed down the toilet or being forced to shave their beards.36 Finally, recent cases against U.S. government defendants alleging treaty violations have argued that a violation of a self-executing treaty triggers the FTCA’s statutory exception.37 The argument relies on the fact that the Supremacy Clause of the Constitution provides that treaties of the United States are the “law of the land” equivalent to federal statutes.38 “[A]n Act of Congress . . . is on a full parity with a treaty.”39 Courts have defined the word “statute” broadly to encompass “[a]ny enactment, to which a state gives the force of law, whether it has gone through the usual stages of legislative proceedings or been adopted in other modes of expressing the will of the state.”40 To date, however, this argument has not been accepted by any court and has been rejected by two district courts.41 36

414 F. Supp. 2d at 44-45 (D.D.C. 2006) (appeal pending). See discussion of the ATS treaty prong in Chapter 8. Chapter 8, Section C.2, addresses the challenge posed by the Military Commissions Act of 2006, which purports to limit claims asserting violations of the Geneva Conventions. 38 U.S. CONST. art. VI, cl. 2. See also Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996) (recognizing that a treaty ratified by the United States is the law of the land). 39 Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion). See also Breard v. Greene, 523 U.S. 371, 376 (1998); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation.”); see also United States v. Alvarado-Torres, 45 F. Supp. 2d 986, 988 n.3 (S.D. Cal. 1999) (“Furthermore, as law of the land, courts must give a treaty the same consideration as a federal statute.”). 40 Stevens v. Griffith, 111 U.S. 48, 50 (1884). See also American Fed’n of Labor v. Watson, 327 U.S. 582, 592-93 (1946); BLACK’S LAW DICTIONARY 1410 (6th ed. 1990) (defining “statute” to include any “formal written enactment of a legislative body” and stating that the term is used “to designate the legislatively created laws in contradistinction to court decided or unwritten laws”). Plaintiffs would also have to show that the treaty is self-executing and creates a private right of action. 41 In re Iraq and Afghanistan Detainees Litigation, 2007 WL 926145, at * 22 (D.D.C. Mar. 27, 2007); Turkmen v. Ashcroft, Civ. No. 02-2307, 2006 WL 1662663, at *49-50 (E.D.N.Y. June 14, 2006). 37

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b.

The Substitution Process and Challenges to Substitution

As noted above, the sole remedy for certain torts committed by federal officials within the scope of their employment is against the U.S. government under the FTCA. Under the Westfall Act, the United States may substitute itself as a defendant when a federal employee is sued for negligent or wrongful acts committed within the scope of his or her employment.42 Once the Attorney General certifies that the acts alleged took place within the scope of employment, the claims are transformed into claims under the FTCA against the United States and are subject to all of the exclusions and limitations on liability set forth in the FTCA. The effect of such a substitution is to subject the claim to the strict rules of sovereign immunity otherwise applicable to claims against the U.S. government. Substitution occurs when the Attorney General certifies that the defendant was acting within the scope of his or her employment at the time of the relevant incident. However, plaintiffs may challenge the certification, arguing that the individual defendant is not a government employee or that the actions were not taken within the scope of employment. The ultimate decision on the propriety of the substitution is made by the court.43 The decision whether to challenge a scope of employment certification under the Westfall Act may confront the litigator with a difficult choice. A finding that substitution is not proper has several advantages for the plaintiff. Perhaps most important, the U.S. government’s sovereign immunity does not apply, and it is not necessary to confront the exceptions to the waiver of sovereign immunity. In addition, the plaintiff will have the right to a jury trial and the possibility of punitive damages, whereas claims against the U.S. government are not tried before a jury,44 and punitive damages are not permitted.45 However, if substitution is not permitted, the United States may 42

28 U.S.C. § 2679.

43

In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the Supreme Court resolved a split in authority about whether the Attorney General’s scope of employment certification is subject to judicial review, holding that the certification is reviewable. See also Davric Maine Corp. v. U.S. Postal Serv., 238 F.3d 58, 65 (1st Cir. 2001). The plaintiff may have the right to reasonable discovery, Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994), but has the burden of proof. 44

28 U.S.C. § 2402. Suits against the United States are not suits at common law within the meaning of the Seventh Amendment, since they exist only because of a legislative waiver of sovereign immunity. Osborn v. Haley, 127 S. Ct. 881, 900 (2007). 45

28 U.S.C. § 2674 (no punitive damages under the FTCA). Note however that compensatory damages may exceed actual pecuniary loss. Molzof v. United States, 502

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escape responsibility for the acts at issue, and it may not be responsible for any resulting damage award. For these reasons, plaintiffs often argue for a broader scope of employment standard when, for example, federal officials have been accused of sexual assault or harassment of detainees or others. The first basis for a challenge to attempted substitution is that the individual is not an employee, but rather an independent contractor, who is therefore not entitled to government immunity. Neither the FTCA nor the Westfall Act applies to the actions of an independent contractor.46 The second, more complex argument challenges the government’s claim that the employee’s conduct falls within the scope of employment and is discussed in the following subsection. c.

The Scope of Employment

The U.S. government can substitute itself in place of an employee sued for wrongful acts causing personal injury or death only if the employee’s acts fall within the scope of his or her employment. When a government employee is accused of committing egregious human rights violations, and the Attorney General certifies that the acts were within the scope of the employee’s employment, the crux of the argument against substitution is whether Congress intended to authorize the federal government to protect employees from liability for outrageous abuses and other illegal behavior. This area of the law is hotly contested as this book goes to print. The Westfall Act’s legislative history indicates that the Act was not intended to apply to those who committed “egregious torts.”47 Congress intended to provide immunity to protect employees from “suits for clerical negligence in typing or filing documents that contributed to delays or errors in benefit determinations; suits against par[k] rangers for injuries suffered at sites supervised or operated by the National Park Service; and suits against maintenance personnel for misplaced electrical cords or improperly mopped U.S. 301, 312 (1992) (future medical expenses and damages for loss of “enjoyment of life” covered). 46 See United States v. Orleans, 425 U.S. 807, 813-14 (1976). In Sosa v. AlvarezMachain, 542 U.S. 692 (2004), the claims against Sosa proceeded against him individually because the district court, in an unpublished order, held that he was an independent contractor, not a government employee, and substitution was therefore denied. The “government contractor defense,” the common law immunity sometimes asserted by government contractors, is discussed in Chapter 12, Section F. 47 H.R. REP. NO. 100-700, at 5, reprinted in 1988 U.S.C.C.A.N. 5945, 5949.

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floors that may have caused injuries.”48 The House Report goes on to state that “[i]f an employee is accused of egregious misconduct rather than mere negligence or poor judgment, then the United States may not be substituted as a defendant.”49 Congressional Representative Barney Frank, sponsor of the Westfall Act, submitted an amicus brief for Jennifer Harbury in Harbury v. Hayden that details the factors that Congress intended to weigh in scope of employment decisions.50 Most relevant is the analysis that “seriously criminal” acts could not be undertaken within the scope of employment.51 Examples of cases that would not be granted immunity described in congressional testimony included rape and other sexual assault.52 The First and Sixth Circuits have recognized that the Westfall Act does not permit the federal government to immunize its employees for egregious violations. For example, in Wood v. United States, the First Circuit quoted from 48

Id. at 5946. Id. at 5949. 50 Brief of Amicus Curiae Representative Barney Frank, Harbury v. Hayden, 444 F. Supp. 2d 19 (D.D.C. 2006) (No. 06-5282) (Frank Amicus Brief), at 4-7, available at www.ccr-ny.org/humanrightsbook. 51 Id. at 5. 52 Id. at 5-6, citing Legislation to Amend the Federal Tort Claims Act: Hearing on H.R. 4358, the Federal Employees Liability Reform and Tort Compensation Act of 1988, Before the Subcomm. on Administrative Law and Governmental Relations of the H. Comm. on the Judiciary, 100th Cong. 79 (1988) (prepared statement of Robert J. Willmore, Deputy Assistant Att’y Gen., Civil Division, Dep’t of Justice). Representative Frank also emphasized that the 100th Congress, which enacted the Westfall Act, was clearly aware of the international prohibition against torture and in fact passed legislation condemning torture within months of passing the Westfall Act. See Genocide Implementation Act, Pub. L. No. 100-606, 102 Stat. 3045 (1988) (defining torture as one element of genocide; enacted on Nov. 4, 1988). Representative Frank also highlighted the longstanding acceptance of the principles of individual responsibility for international criminal wrongs, going back to the Nuremberg trials. Frank Amicus Brief, supra note 50, at 8. In addition, the legislative history indicates that the purpose of the statutory claim exception was to “ensure that preexisting remedies protected by a statute would not be affected.” United States v. Smith, 499 U.S. 160, 182 (1991) (Stevens, J., dissenting). The Westfall Act “does not change the law, as interpreted by the Courts with respect to the availability of other recognized causes of action; nor does it either expand or diminish rights established under other Federal statutes.” Id., citing H.R. REP. NO. 100-700 at 5, reprinted in 1988 U.S.C.C.A.N. 5945, 5949. 49

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the House Report and declared that the Westfall Act “does not permit substitution where the conduct alleged is ‘egregious.’”53 In Rutofske v. Norman, the Sixth Circuit similarly focused on this congressional language and cautioned that the act was “intended to shield federal workers from suits which arise out of their performance of their official duties, not to give them license to commit intentional torts at the office.”54 In contrast, the court in Rasul v. Rumsfeld permitted substitution where the alleged misconduct included torture.55 In that case, former detainees at Guantanamo Bay sued U.S. officials for violations of the Fifth and Eighth Amendments, the Religious Freedom Restoration Act, and international law. Since the FTCA directs district courts to apply the law of the “place where the act or omission occurred,”56 the court followed its understanding of the District of Columbia law governing respondeat superior, and looked to the standards of the the Restatement (Second) of Agency. The court held that the conduct of a servant is within the scope of employment if, but only if: (1) it is of the kind he is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the master; and (4) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.57 Applying this standard, the court held that the torture and abusive interrogation techniques undertaken by various military officials were within the scope of their employment.58 Though the court did not examine the “egregiousness” of 53

995 F. 2d.1122, 1127 (1st Cir. 1993) (en banc) (citing H.R. REP. NO. 100-700, at 5). The Supreme Court rejected Wood on other grounds in Osborn v. Haley, 127 S. Ct. 881 (2007) (holding that the government can substitute into a case in which it denies that the wrongful conduct alleged by the plaintiff took place). 54 114 F.3d 1188 (6th Cir. 1997) (Table) (text available on Westlaw, 1997 WL 299382, at * 2 n.1). See also Allstate Ins. Co. v. Quick, 254 F. Supp. 2d 706, 726 (S.D. Ohio 2002) (rejecting certification as improper and citing House Report language that excluded “egregious” misconduct from immunity under the Westfall Act); Mallekoote v. Marsh, Civ. No. 89-788, 1991 WL 502985, at *5 (W.D. Mich. 1991) (recognizing egregious acts exception). 55 414 F. Supp. 2d 26, 31 (D.D.C. 2006) (appeal pending). 56 28 U.S.C. § 1346(b). 57 Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 32 (D.D.C. 2006) (appeal pending) (citing RESTATEMENT (SECOND) OF AGENCY § 228 (1957)). 58 Id. at 32-36.

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the conduct, it based its conclusion on the fact that the defendants were acting with authority from and on behalf of the government and that their conduct was foreseeable given the context.59 In Bancoult v. McNamara,60 indigenous Chagossians sought compensation from various U.S. officials for their participation in forcibly expelling the plaintiffs from Diego Garcia, an island in the Indian Ocean that the United States depopulated in the 1960s and 1970s to make way for a military base. The Attorney General certified that the individual defendants had acted within the scope of their employment. The plaintiffs challenged this certification, arguing that the conduct violated jus cogens international law norms and was “outrageous” and therefore could not have been within the scope of their authority.61 The court rejected this argument and held that “in the vicarious liability context, the court’s role is not to establish ‘whether the alleged conduct is deleterious or actionable; rather, [the court is required to] determine who may be held liable for that conduct, an employee or his boss.’”62 The meaning of “scope of employment” in the statute is complicated by the fact that FTCA actions are governed by the law of the place where the acts took place.63 As a result, courts generally look to the respondeat superior rules in the place where the abuses were committed. For many suits against federal government officials, the laws of the District of Columbia apply. Rasul, Schneider, and Bancoult are based in large part on two expansive respondeat superior cases decided by the D.C. courts, cases that have been questioned since by courts in the District of Columbia.64 Good arguments can be made that these 59

Id.

60

370 F. Supp. 2d 1 (D.D.C. 2004), aff’d, 445 F.3d 427 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 1125 (2007). 61

Bancoult v. McNamara, 370 F. Supp. 2d 1, 8 (D.D.C. 2004).

62

Id. (citing Schneider v. Kissinger, 310 F. Supp. 2d 251, 265 (D.D.C. 2004) (rejecting the argument that violations of peremptory norms of international law can never be within the scope of an official’s employment) (emphasis in original)). 63

As noted in the overview at the start of this chapter, the FTCA waives sovereign immunity for certain claims “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). 64 Haddon v. United States, 68 F.3d 1420, 1427-28 (D.C. Cir. 1995) (Sentelle, J. dissenting) (stating that the D.C. courts have “paid lip service to the principles of the RESTATEMENT (SECOND) OF AGENCY (1957),” but noting the inconsistent application of those principles and adding that he is “not convinced that [Lyon v. Carey, 533 F.2d 649

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D.C. decisions, and the Westfall Act decisions that apply them, are inconsistent with general principles of respondeat superior law, as reflected in the Restatement of Agency65 and that these general principles, which would exclude seriously criminal conduct from acts committed within the scope of employment, are more appropriate to the determination of whether individuals should be accountable for human rights violations.66 Since the FTCA directs district courts to apply the law of the “place where the act or omission occurred,”67 the argument to look to the overarching Restatement on Agency is strengthened where the human rights violations took place in multiple jurisdictions: for example, where U.S. officials, making decisions in U.S. locations such as Washington, D.C. or the Pentagon in Virginia, worked with other individuals overseas who carry out the physical human rights violations. Where acts take place in multiple locations, fairness and consistency point towards using a uniform standard.68 Even though they have not yet been accepted by any court, there are strong arguments that the Westfall Act was never intended to immunize U.S. officials (D.C. Cir. 1976) and Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981)] are properly decided.”). 65 Restatement (Second) of Agency Section 228 (1958) states that: [c]onduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. See, e.g., Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 n.4 (D.C. 1987). The key inquiry is whether the employer (i.e., the United States) could have foreseen that the employee would engage in the conduct and whether it is fair to hold the employer liable. See Haddon v. United States, 68 F.3d 1420, 1424 (D.C. Cir. 1995). 66 As noted earlier, a decision that an act is outside the scope of employment has the potentially unfortunate effect of allowing the United States to escape liability under the FTCA. In other contexts, plaintiffs usually seek broad principles of respondeat superior liability so that employers are held liable for the torts of their employees. Where human rights abuses take place outside of the United States, however, substitution is likely to trigger dismissal of the lawsuit because of the “foreign country” exception to FTCA liability, discussed below. 67 28 U.S.C. § 1346(b). 68 See, e.g., Haddon v. United States, 68 F.3d 1420, 1424 (D.C. Cir. 1995) (stating that the point of the foreseeability inquiry is whether it is fair to hold the employer liable for the employee’s acts).

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for human rights violations. Even if there was any ambiguity concerning congressional intent, “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”69 Therefore, counsel can argue that there can be no substitution when the alleged misconduct is a human rights violation. Counsel bringing human rights claims may also wish to argue by analogy to international and constitutional law. Federal courts have declined to extend immunity to individuals in the analogous context of ATS cases in which foreign defendants assert the “act of state doctrine” as a defense to tort liability. Foreign government officials may not assert that acts of torture and inhumane treatment were performed on behalf of the sovereign and therefore should be immunized.70 By analogy, domestic defendants should similarly be denied such protection. Additionally, in the domestic context, the Supreme Court has held that, when a state officer violates the Constitution, Eleventh Amendment immunity does not attach because the individual officer is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”71 Similarly, when a federal officer acts outside of his or her lawfully delegated authority, by intentionally violating a human rights norm, the conduct falls outside lawfully delegated authority.72 Finally, the government’s certification that a defendant official was acting within the scope of employment is subject to a factual challenge.73 Where the 69

The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (citing id.); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963) (same); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 114 (1987). 70 See, e.g., Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 889-90 (2d Cir. 1980); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1470 (9th Cir. 1994). 71 Ex parte Young, 209 U.S. 123, 159-60 (1908). 72 Cf. Nasuti v. Scannell, 906 F.2d 802, 807 n.10 (1st Cir. 1990). 73 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995); Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003); Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994) (quoting Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994) (court should not merely affirm the Attorney General’s certification; certification acts merely as a prima facie showing that is subject to review de novo by the court)). In Alexander v. Federal Bureau of Investigations, 971 F. Supp. 603, 611 (D.D.C. 1997), the court “expressly reject[ed]” the U.S. argument that “because the defendants were political appointees, it was within the scope of their employment” to illegally gather privileged files for partisan political use. See also Schneider v. Kissinger, 310 F. Supp. 2d 251, 264 (D.D.C. 2004), aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005) (“This certification is not conclusive. . . . [T]he

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plaintiff disputes issues of material fact with respect to the scope of employment, litigators should consider whether to request an opportunity to take discovery and seek an evidentiary hearing on the issue. In Heuton v. Anderson, for instance, the Eighth Circuit allowed evidentiary hearings into all disputed facts related to the scope of employment, including whether the incident occurred at all.74 d.

Equitable Relief

The text of the Westfall Act makes clear that the act applies only to damages claims and not to equitable remedies. Substitution is “inappropriate insofar as plaintiff’s claim seeks injunctive or declaratory relief.”75 Declaratory and injunctive relief is available for torts in violation of the law of nations.76 Equitable relief may be available for treaty violations.77 plaintiffs bear the burden of producing evidence that a defendant was acting outside the scope of his employment.”). In Osborn v. Haley, 127 S. Ct. 891 (2007), however, the Supreme Court stated that the U.S. government could base its certification on its own view of the underlying facts. That is, the certification ruling does not need to assume the truth of the plaintiffs’ allegations. The court held that the Attorney General’s certification “is based on a different understanding of the facts than is reflected in the complaint.” Id. (quoting Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994)). 74 75 F.3d 357, 361 (8th Cir.1996). See also McHugh v. Univ. of Vermont, 966 F.2d. 67, 74 (2d Cir. 1992) (holding that trial court may hold evidentiary hearing to resolve factual dispute as to whether alleged acts came within the scope of employment); Broom v. Dudley, 883 F. Supp. 1091, 1093-94 (E.D. Mich. 1994) (holding that an evidentiary hearing was required to determine the basis of the government’s certification, given the factual dispute at issue). In Krieger v. U.S. Department of Justice, Civ. No. 98-1703, 2005 U.S. Dist. LEXIS 3980, at *8 (D.D.C. Mar. 8, 2005), the court stated that “if there is a material dispute as to the scope [of employment] issue the district court must resolve it in an evidentiary hearing.” (Citations omitted.) See also Weinberg v. Johnson, 518 A.2d 985, 992 (D.C. 1986) (question of scope of employment properly submitted to jury). 75 Vanover v. Hantman, 77 F. Supp. 2d 91, 97 (D.D.C. 1999). 76 See, e.g., Jota v. Texaco, Inc., 157 F. 3d 153, 161-62 (2d Cir. 1998); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1480 (9th Cir. 1994); Sanchez-Espinoza v. Reagan, 770 F. 2d 202, 207 (D.C. Cir. 1984); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 784-85 (D.C. Cir. 1984) (Edwards, J., concurring), cert. denied, 470 U.S. 1003 (1985); Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1334 (N.D. Cal. 2004); Presbyterian Church of the Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 353 (S.D.N.Y. 2003); Adra v. Clift, 195 F. Supp. 857, 865 (D. Md. 1961). 77 Asakura v. City of Seattle, 265 U.S. 332, 339-41 (1924) (holding that under treaty which “operates of itself” and was “applied and given authoritative effect by the courts,” the plaintiff was entitled to injunctive relief); Jordan v. K. Tashiro, 278 U.S. 123 (1928)

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3.

Exhaustion of Administrative Remedies

Under the FTCA [a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.78 Where plaintiffs fail to exhaust these remedies, their claims are barred.79 Given that this requirement is strictly enforced, plaintiffs considering filing damages claims against the U.S. government should consult a guide to administrative remedies and take care to comply with the applicable deadlines.80 4.

Exceptions to the Waiver of Immunity

The FTCA waives sovereign immunity for certain tort claims, but then provides a list of exceptions to that waiver in 28 U.S.C. Section 2680. If any exception applies, the United States may not be sued.81 Those with a particular relevance to human rights claims are noted below.82 a.

The Foreign Country Exception

Under the FTCA, the U.S. government may not be sued for injuries occurring in a foreign country.83 In Sosa, the Supreme Court considered whether the “foreign country exception” barred claims brought by a man kidnapped from Mexico at the behest of the Drug Enforcement Administration. The court determined that 28 U.S.C. Section 2680(k) bars all claims against the federal government based on any injury suffered in a foreign country, regardless of where the tortious act or omission giving rise to that injury occurred. The Court overruled lower court decisions that had held that the exception did not apply to (granting mandamus petition to enforce treaty). See discussion of treaty enforcement in Chapter 8. 78 28 U.S.C. § 2675(a). 79 See McNeil v. United States, 508 U.S. 106, 113 (1993); Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 39 (D.D.C. 2006). 80 See CIVIL ACTIONS AGAINST THE UNITED STATES, supra note 7, ch. 2(C). 81 See Smith v. United States, 507 U.S. 197 (1993). 82 For a general guide to the FTCA and the exceptions to waivers, see CIVIL ACTIONS AGAINST THE UNITED STATES, supra note 7. 83 28 U.S.C. Section 2680(k) excepts “[a]ny claim arising in a foreign country” from the FTCA’s waiver of immunity.

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injuries that resulted from acts or decisions originating in the United States.84 The Sosa analysis of 28 U.S.C. Section 2680(k) bars human rights claims against the United States for injuries occurring outside the United States, even when decisionmaking related to those injuries occurred on U.S. territory.85 b.

Combatant Activities

Section 2680(j) of the FTCA states that the U.S. government will not waive immunity for “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”86 “Time of war” does not require an express declaration of war, but rather includes periods when U.S. armed forces engage in an organized series of hostile encounters on a significant scale with the military forces of another nation.87 This exception does not apply if the claim arose out of military training or preparation for combat, the production of military weapons by non-combatants, or peripherally related activities such as pollution caused by vessels no longer engaged in combat operations.88 This exception could bar some claims for violations committed during armed conflict, although egregious human rights violations should not be seen as “arising out of combatant activities.” c.

Intentional Torts

According to the FTCA Section 2680(h),89 the United States is not liable for the intentional torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, malicious prosecution, libel, slander, 84 Sosa v. Alvarez-Machain, 542 U.S. 692, 711 (2004) (rejecting the so-called “headquarters exception” to the foreign country exception). 85 See Harbury v. Hayden, 444 F. Supp. 2d 19, 25 (D.D.C. 2006) (appeal pending) (holding that claims against U.S. government were barred because torture and murder took place in Guatemala, despite allegations that U.S. officials engaged in tortious behavior in Washington, D.C.). 86 28 U.S.C. § 2680(j). See also Koohi v. United States, 976 F.2d 1328, 1333-35 (9th Cir. 1992). 87 Id. at 1335. 88 Skeels v. United States, 72 F. Supp. 372 (W.D. La. 1947) (finding exception inapplicable to injuries caused by plane engaged in target practice); Kuhne v. United States, 267 F. Supp. 649 (E.D. Tenn. 1967) (permitting claim for death of engineer due to radiation while working on atomic bomb); Johnson v. United States, 170 F.2d 767 (9th Cir. 1948) (allowing pollution claim caused by noncombatant U.S. naval vessel to proceed). 89 28 U.S.C. § 2680(h).

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misrepresentation, deceit, and interference with contract rights, or for a limited number of negligent acts, such as negligent misrepresentation90 and negligent interference with contract rights.91 However, this exception does not apply, and the United States therefore waives immunity, if the intentional tort is committed by an “investigative or law enforcement officer,” defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or make arrests for violations of Federal law.”92 d.

Discretionary Function

Under the “discretionary tort” exception, the United States remains immune for any claim “based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”93 However, the FTCA does not define “discretionary function” or “duty.” In general, acts that involve a “high-level” policy or decision are subject to immunity, while those that are “low-level” or day-to-day generally are not immune.94 Which side of the line specific acts fall on has been intensively litigated, and congressional intent in protecting certain acts tends to be a strong factor.95 The Supreme Court has also distinguished between whether there was an element of judgment or choice or whether the function was mandatory.96 C. THE POLITICAL QUESTION DOCTRINE In most human rights cases against the U.S. government or its officials, defendants will invoke the political question doctrine as a basis for dismissal. The doctrine and its relation to human rights claims are discussed at length in 90

United States v. Neustadt, 366 U.S. 696 (1961). Guccione v. United States, 847 F.2d 1031 (2d Cir. 1988). 92 28 U.S.C. § 2680(h). According to the legislative history, the purpose of the law enforcement proviso is to “provide a remedy against the Federal Government for innocent victims of Federal law enforcement abuses.” S. REP. NO. 93-588, 93d Cong., 2d Sess. 3 (1973), reprinted in 1974 U.S.C.C.A.N. 2789, 2792 (1974). 93 28 U.S.C. § 2680(a). 94 See discussion and cases cited in CIVIL ACTIONS AGAINST THE UNITED STATES, supra note 7, § 2:26. 95 Berkovitz by Berkovitz v. United States, 486 U.S. 531, 538-39 (1988); see also United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 821 (1984). 96 Berkovitz by Berkovitz v. United States, 486 U.S. 531, 544 (1988). 91

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Chapter 13. Here, it is worth noting that the doctrine has special application in the context of claims against the United States and U.S. officials, given that it concerns separation of powers among the different branches of the federal government. Particularly with regard to the conduct of U.S. foreign affairs, courts have tended to show deference to the decisions of the executive branch.97 In Schneider v. Kissinger, for example, plaintiffs brought suit against former National Security Advisor Henry Kissinger for the death of a Chilean general and for Kissinger’s alleged role in Chile’s 1970 military coup.98 The court found that the decision of the executive branch to participate in these alleged covert operations was a political decision, not subject to judicial oversight.99 In Bancoult v. McNamara, indigenous islanders challenged the measures that the U.S. military used to depopulate the island of Diego Garcia rather than the decision to establish a military base on the island.100 Nevertheless, the court held that the case involved “topics that serve as the quintessential sources of political questions: national security and foreign relations.”101 However, even in the context of military actions and matters of foreign affairs, courts have declined to dismiss claims against the United States and U.S. officials on political question grounds. Koohi held that federal courts are well equipped to review military decisions: Nor is the lawsuit rendered judicially unmanageable because the challenged conduct took place as part of an authorized military operation. The Supreme Court has made clear that the federal courts are 97 See, e.g., Ramirez de Arellano v. Weinberger, 724 F.2d 143, 148 (D.C. Cir. 1983) (holding that enjoining the Secretary of Defense from wrongfully occupying property of Honduran landowners would intrude into conduct of foreign affairs); El-Shifa Pharm. Indus. Co. v. United States, 402 F. Supp. 2d 267, 273-76 (D.D.C. 2005) (holding that political question doctrine barred claim for compensation for U.S. bombing of a pharmaceutical plant in Sudan); Industria Panificadora, S.A. v. United States, 763 F. Supp. 1154, 1159-61 (D.D.C. 1991) (finding political question where Panamanian corporations alleged that U.S. forces maintaining public order failed to protect their properties from looting, arson, and destruction); Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332 (S.D.N.Y. 1984) (finding a political question where British citizens challenged U.S. deployment of cruise missiles). 98 412 F.3d 190, 191-98 (D.C. Cir. 2005). 99 Id. 100 445 F.3d 427, 429-30 (D.C. Cir. 2006). 101 Id. at 433.

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capable of reviewing military decisions, particularly when those decisions cause injury to civilians.102 U.S. courts have adjudicated damage claims arising in the context of U.S. military operations, rejecting the political question doctrine as a basis for dismissal of claims against the United States, going back to the War of 1812 and continuing to the “war against terrorism.”103 Motions to dismiss on political question grounds are frequently presented with exaggerated rhetoric, particularly in cases filed against the U.S. government and its employees. Counsel should focus on the demanding legal standard, rather than on unfounded claims that cases will undermine the very foundations of the constitutional framework, and should recognize the many politically sensitive cases in which the doctrine has been rejected. D. THE TORTURE VICTIM PROTECTION ACT (TVPA) AND U.S. OFFICIALS Under the TVPA, a claim may be brought against an “individual who, under actual or apparent authority, or color of law, of any foreign nation,” commits 102 976 F.2d 1328, 1331 (9th Cir. 1992). See also Linder v. Calero-Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992) (allowing tort claims by non-combatant civilian in conflict outside the United States and holding that political question doctrine did not apply when there was no challenge to the legitimacy of U.S. foreign policy and when the court was not required to say which side was “right” in Nicaraguan civil war); Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 933-35 (D.C. Cir. 1988) (refusing to dismiss as non-justiciable political question a Fifth Amendment claim by American citizens against U.S. officials for funding the Nicaraguan contras who were intentionally targeting their lives and liberty). 103 The Paquete Habana, 175 U.S. 677 (1900); Brown v. United States, 12 U.S. (8 Cranch) 110 (1814) (rejecting executive power to seize domestic property of enemy alien during War of 1812); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (judicial rejection of executive’s claimed powers to seize steel mills during the Korean War); New York Times Co. v. United States, 403 U.S. 713 (1971) (rejecting foreign relations objections to publication of the Pentagon Papers); Flynt v. Rumsfeld, 245 F. Supp. 2d 94, 106-07 (D.D.C. 2003) (reviewing Department of Defense guidelines regarding journalists’ access to theater of war); Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004) (finding that “[t]he Constitution’s allocation of war powers to the President and Congress does not exclude the courts from every dispute that can arguably be connected to ‘combat’ ” or from reviewing military decision-making in connection with an ongoing conflict”).

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torture or extrajudicial killing.104 It is an unsettled question as to whether such an individual could be a U.S. official. At the time of this writing, few courts have confronted the issue. In Schneider v. Kissinger, for instance, the plaintiff brought a TVPA claim against Henry Kissinger for the murder of a Chilean general.105 The court briefly disposed of this claim, stating: “In carrying out the direct orders of the President of the United States . . . Dr. Kissinger was most assuredly acting pursuant to U.S. law, if any, despite the fact that his alleged foreign co-conspirators may have been acting under color of Chilean law.”106 A subsequent unpublished decision, Gonzalez-Vera v. Kissinger, found that Kissinger did not act under color of Chilean law “because he was neither a higher official who authorized and directed acts of torture or extrajudicial execution nor an individual who acted in concert with a foreign state to commit such acts.”107 Arar v. Ashcroft provided more analysis on the question but arrived at the same result.108 Maher Arar, who was born in Syria but was a resident and citizen of Canada, was in transit through a New York airport when U.S. officials detained and interrogated him. The U.S. officials then sent him to Syria to be tortured, in one of the first publicly known cases of “extraordinary rendition.” The district court rejected Arar’s analogy to color of law jurisprudence under 42 U.S.C. Section 1983, by which Arar sought to establish that U.S. officials engaged in joint action with Syrian authorities.109 The court held that Section 1983 law was “ill-suited to the foreign arena,” reasoning that the standards that apply in the international arena are not the same as those that apply within “our society.”110 This reasoning is open to challenge based on the legislative history of the TVPA, which explicitly calls on courts to look to 42 U.S.C. Section 1983 in construing “color of law.”111 The Arar court did state that Arar would have had a viable TVPA claim if Syrian officials had ordered or directed U.S. 104

28 U.S.C. § 1350 (note). 310 F. Supp. 2d 251 (D.D.C. 2004). 106 Id. at 267. 107 Civ. No. 02-2240, 2004 U.S. Dist. LEXIS 30256, at *34-36 (D.D.C. Sept. 17, 2004). 108 414 F. Supp. 2d 250, 264-66 (E.D.N.Y. 2006) (appeal pending). 109 Id. 110 Id. at 266. 111 S. REP. NO. 102-249 (1991); H.R. REP. NO. 102-367 (1991). 105

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officials to torture him.112 Arar thus left open the possibility of applying the TVPA to U.S. officials, at least in that factual setting. In Harbury v. Hayden, the district court rejected the TVPA claims of a U.S. citizen, Jennifer Harbury, who alleged that her husband was tortured and killed in Guatemala by a paid agent of the U.S. Central Intelligence Agency (CIA).113 The court held that the “actions taken by individual CIA defendants carrying out the policies and directives of the CIA to obtain intelligence for the United States’ benefit were therefore undertaken under color of United States law—not ‘under the actual or apparent authority, or color of law of any foreign nation.’”114 The court also rejected plaintiffs’ analogy to Section 1983 jurisprudence, stating that 42 U.S.C. Section 1983 does not apply to federal officials acting under color of federal law.115 The court rejected a claim that U.S. officials could have acted under color of foreign law if they conspired or acted in concert with foreign officials, stating that there was “no valid claim that the individually-named CIA defendants possessed authority by virtue of the laws of Guatemala[.]”116 In his appeal, Arar has argued that Section 1983 jurisprudence provides that those who conspire with state officials act under color of state law, regardless of who is directing whom.117 E. A NOTE ON THE MILITARY COMMISSIONS ACT OF 2006 (MCA) The passage of the Military Commissions Act (MCA)118 in late 2006 introduced an additional note of uncertainty for claims on behalf of detainees in U.S. custody who have been labeled “enemy combatants.” The MCA bars civil suits “relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement” for non-citizens detained by the United States and 112

Arar v. Ashcroft, 414 F. Supp. 2d 250, 266 (E.D.N.Y. 2006). 444 F. Supp. 2d 19 (D.D.C. 2006) (appeal pending). 114 Id. at 42. 115 Id. at 42-43 (citations omitted). 116 Id. at 43. 117 Brief for Plaintiff-Appellant, Arar v. Ashcroft, Civ. No. 06-4616 (2d Cir. filed Dec. 12, 2006); Reply Brief for Plaintiff-Appellant, Arar v. Ashcroft, Civ. No. 06-4616 (2d Cir. filed Mar. 23, 2007), both available at www.ccr-ny.org/humanrightsbook. 118 10 U.S.C. §§ 948a-950w. For a general overview, see Center for Constitutional Rights, Military Commissions Act of 2006: A Summary of the Law (2006), available at www.ccr-ny.org. 113

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“determined to be an enemy combatant” or “awaiting such determination.”119 This provision applies to pending and future cases of non-citizens detained since September 11, 2001,120 and seeks to limit challenges to illegal government conduct by cutting off the ability to seek redress through civil proceedings, such as the ATS, U.S. civil rights statutes, or the Religious Freedom Restoration Act. The MCA has been widely criticized, may be amended, and is likely to be the subject of multiple court challenges. A panel of the D.C. Circuit, with one impassioned dissent, rejected a broad challenge to the MCA’s constitutionality in Boumediene v. Bush, and the Supreme Court agreed to review the decision.121 It is certain that detainees will continue to press this constitutional challenge to the MCA until the Supreme Court resolves the issue.122 F. THE STATE SECRETS DEFENSE The potential discovery of state secrets has been raised in claims against federal officials as an impediment to discovery and also as grounds to dismiss. Under the common law state secrets privilege, the government can refuse to disclose evidence upon a showing that there is a “reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”123 The government can thus seek to block discovery of any information that, if disclosed, would adversely affect national security.124 Ellsberg described the privilege as follows: The privilege may be asserted only by the government itself; neither a private party nor an individual official may seek its aid. Furthermore, in order to invoke it, “[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”. . . The various harms, against which protection is sought by invocation of the privilege, include impairment of the nation’s defense capabilities, disclosure of 119

MCA, § 7, amending 28 U.S.C. § 2241(e)(2). MCA, § 7(b) (stating that the bar on civil litigation applies to “all cases, without exception, pending on or after the date of the enactment” of the MCA). See also Chapter 8, Section C.2, for additional discussion of the MCA. 121 476 F.3d 981 (D.C. Cir.), cert. granted 127 S. Ct. 3078 (2007). 122 For updates on the status of the MCA, see the Web site of the Center for Constitutional Rights, www.ccr-ny.org. 123 United States v. Reynolds, 345 U.S. 1, 10 (1953). 124 Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983). 120

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intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments.125 Because no competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of this privilege, it is essential for courts to examine carefully the circumstances that allegedly justify its invocation.126 The U.S. government has asserted the state secrets privilege in ATS litigation challenging the government’s conduct in the “war on terror.” For example, in El-Masri v. Tenet, a German citizen of Lebanese descent brought constitutional and ATS claims against U.S. officials and private corporations.127 El-Masri alleged that federal officials and employees of private corporations had abducted him in Macedonia; detained him incommunicado and without charge; removed him to a prison in Afghanistan under the government’s policy of “extraordinary rendition”; tortured him; and released him four months later on an abandoned road in Albania.128 The government was permitted to intervene in the suit and then moved to dismiss, invoking the state secrets privilege by submitting a classified ex parte declaration to the court.129 The government here sought to expand application of the privilege to support a motion to dismiss at the onset of the litigation rather than waiting for discovery and seeking to prevent disclosure of particular information. The court agreed with the government that any admission or denial of the existence of the alleged intelligence program “would present a grave risk of injury to national security” and dismissed the case on the grounds that El-Masri’s claims could not be litigated without disclosing state secrets, proof of which formed the “entire aim of the suit.”130 125

Id. at 56-57. Id. at 57. See also Halkin v. Helms, 690 F.2d 977, 990-1001 (D.C. Cir. 1982); Barry A. Stulberg, State Secrets Privilege: The Executive Caprice Runs Rampant, 9 LOY. L.A. INT’L & COMP. L.J. 444 (1986-1987); Note: The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 YALE L.J. 570 (1982). 127 437 F. Supp. 2d 530 (E.D. Va. 2006), aff’d, 479 F.3d 296 (4th Cir. 2007). 128 El-Masri v. Tenet, 479 F.3d 296, 300 (4th Cir. 2007). 129 El-Masri v. Tenet, 437 F. Supp. 2d 530, 525-41 (E.D. Va. 2006). The government invoked the state secrets privilege in another rendition case, Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). In that case, the U.S. government intervened to invoke the privilege but the court did not reach the issue. Id. at 287. 130 El-Masri v. Tenet, 437 F. Supp. 2d 530, 537 (E.D. Va. 2006). 126

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By contrast, in an action against AT&T alleging that the corporation assisted the United States in conducting domestic electronic surveillance, a district court rejected application of the state secrets doctrine at the start of the litigation. The court held that plaintiffs were entitled to some discovery so that the possible applicability of the state secrets privilege could be determined later in the proceedings, in light of the facts.131 G. SUING STATE AND LOCAL OFFICIALS State and local officials and entities are also subject to suit under the ATS.132 Bringing suit against state or local officials may, in some instances, be more advantageous than bringing suit against federal officials. For instance, plaintiffs who bring suit against state or local officials do not have to worry about the government substituting itself as the defendant, something that plaintiffs bringing suit against federal officials must often contend with under the Westfall Act. Only a few cases to date have alleged ATS claims against state or local officials. In Martinez v. City of Los Angeles,133 the plaintiff brought suit against the City of Los Angeles, the Los Angeles Police Department (LAPD), and LAPD officers alleging that upon the request of the LAPD, he had been subjected to arbitrary arrest and detention in Mexico for a murder he did not commit. The case was permitted to proceed against the local defendants, though in the end, the underlying ATS claims were dismissed upon a finding that the plaintiff had not been detained “arbitrarily” within the meaning of international law. TVPA claims against state and local officials are not precluded by the statute, but they are unlikely, given that the TVPA applies only when an individual acts “under actual or apparent authority, or color of law, of any foreign nation.”134 In a TVPA claim against state or local officials, plaintiffs would bear the burden of establishing that the official had acted under the authority of a foreign nation. 131 Hepting v. AT&T, slip opinion at 34-35, Civ. No. 06-672 (N.D. Cal. July 20, 2006) (Order Denying Motion to Dismiss) (appeal pending), available at www.ccr-ny.org/ humanrightsbook. 132 As mentioned supra note 6, it may be possible to bring claims against state officials under 28 U.S.C. Section 1331 and 42 U.S.C. Section 1983. 133 141 F.3d 1373 (9th Cir. 1998). 134 28 U.S.C. § 1350 (note) (emphasis added).

CHAPTER 12 WHO CAN BE SUED III: CORPORATIONS

One of the most dynamic areas of Alien Tort Statute (ATS)1 litigation since the mid-1990s has been claims against multinational corporations for their direct involvement or complicity in human rights violations committed in connection with their activities abroad. These cases often arise in the context of the extractive industries (e.g., oil and gas exploration and development), when multinational corporations become involved in projects with repressive governments in their search for oil, gas, or precious metals. The cases also frequently arise in the context of armed conflict between the regimes and their internal opponents. ATS cases involving corporations have generated considerable public attention because of the financial stakes involved and because of the heated corporate challenge to the ATS as a means to hold them accountable for complicity in human rights violations. Though it is difficult to establish a direct connection between ATS cases and the recent development of other international regulatory efforts, the litigation has contributed to the growing debate about the need for international regulation of corporate activities in repressive states and zones of conflict.2 ATS litigation may be seen as partially filling the accountability vacuum left by the absence of comprehensive international regulation and may serve as a catalyst for future reform efforts. 1 28 U.S.C. § 1350. Specific issues relating to claims against corporations under the Torture Victim Protection Act (TVPA), 28 U.S.C. Section 1350 (note), and the Racketeer Influenced and Corrupt Organizations Act (RICO) are discussed later in this chapter. Except when noted below, the analysis of ATS corporate claims in this chapter is applicable to claims under other human rights statutes. 2 See Jeff Gerth, U.S. and Oil Companies Back Revised Effort on Disclosure, N.Y. TIMES, Sept. 19, 2003, at W1. U.S. corporate human rights cases should be seen in the context of broader international efforts to regulate the behavior of corporate actors that affects the human rights of tens of millions of people in every corner of the globe. See United Nations, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E.S.C. Res. 2003/16, U.N. ESCOR Comm’n on Human Rights, 55th Sess., Agenda Item 4, U.N. Doc. E/CN. 4/Sub. 2/2003/ 12/Rev. 2 (2003).

309

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There have been very few reported decisions in corporate complicity cases since Sosa.3 Very little in the Sosa decision itself specifically concerned corporate liability under the ATS. The main reference to a corporate case was in footnote 21, in which the Court noted that, in light of the submissions by the South African government and the U.S. State Department, a case seeking redress for complicity in apartheid crimes might be a suitable candidate for “case-specific deference.”4 Nothing in the Sosa decision demands more of plaintiffs seeking to hold corporations accountable for human rights violations than the strict evidentiary requirements imposed generally, which require claims to be “based on the present-day law of nations” and “to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the recognized 18th-century paradigms.”5 A wide range of post-Sosa issues are being litigated in pending corporate cases, with several pending on appeal. At one point, many observers expected the Unocal cases to produce the first significant corporate decision.6 The December 2004 confidential settlement deprived ATS litigators of an en banc 3

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Id. at 733 n.21. The Sosa Court also references corporations in footnote 20 in the context of the state action requirement. See id. at 733 n.20 (“A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or an individual.”). 5 Id. at 730. 6 Two cases filed against Unocal in federal court survived motions to dismiss but were later dismissed on a motion for summary judgment; after a Ninth Circuit panel reversed that dismissal, the circuit agreed to hear the case en banc, but the case settled in December 2004, before oral argument on the rehearing. In the meantime, plaintiffs had refiled their state law claims in California state court; those claims were also resolved by the settlement agreement. See Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) and National Coalition Gov’t of Burma v. Unocal, 176 F.R.D. 329 (C.D. Cal. 1997) (denying motion to dismiss); Doe v. Unocal, 110 F. Supp. 2d 1294 (C.D. Cal. 2000) (granting defendants’ motion for summary judgment), aff’d in part, rev’d in part, 395 F.3d 932 (9th Cir 2002) (reversing summary judgment and remanding for trial), reh’g en banc granted, No. 00-56603, 2003 WL 359787 (9th Cir. Feb. 14, 2003); Doe v. Unocal, 403 F.3d 708 (9th Cir. 2005) (vacating summary judgment decision in light of settlement). Neither side would disclose details of the settlement. Lisa Girion, Unocal to Settle Rights Claims, L.A. TIMES, Dec. 14, 2004, at A1. We refer to this entire complex of litigation as Doe v. Unocal in this chapter. 4

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decision from the Ninth Circuit on many of these issues, especially on the standards for aiding and abetting and vicarious liability. This chapter begins with a brief overview of the evolution of ATS litigation as a tool for human rights litigation against corporations.7 It then discusses some of the most prominent issues to emerge from the corporate ATS cases, including allegations of corporate complicity in human rights violations; special problems triggered by complex corporate structures; claims raised under the Torture Victims Protection Act (TVPA) or state law; and the particular issues involved in cases against government contractors. A. EVOLUTION OF THE ALIEN TORT STATUTE (ATS): TOWARD CORPORATE COMPLICITY As described in previous chapters, throughout the 1980s, ATS cases involved claims against officials of recognized governments. Although not a corporate case, the landmark 1995 Kadic v. Karadzic8 decision paved the way for subsequent corporate litigation under the ATS. The district court in Kadic, relying on pre-Fila´rtiga views of international law,9 dismissed the claims on the grounds that Karadzic was a private person who could not be sued under the ATS because international law traditionally had applied only to the modern sovereign state.10 The Second Circuit reversed, finding first that private parties can be held liable for violations that do not require state action, including genocide, war crimes, and crimes against humanity.11 Second, the court held that private actors can be held liable for violations that do require state action when they act under the color of official authority.12 The Kadic decision was a strong reaffirmation of the Fila´rtiga court’s view that courts hearing ATS cases must 7 The corporate ATS cases have generated considerable academic commentary. See, e.g., Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001); Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon—An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20 BERKELEY J. INT’L L. 91 (2002); Shanaira Udwadia, Corporate Responsibility for International Human Rights Violations, 13 S. CAL. INTERDISC. L.J. 359 (2004). 8 70 F.3d 232 (2d Cir. 1995). 9 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 10 Doe v. Karadzic, 866 F. Supp. 734, 739-41 (S.D.N.Y. 1994). 11 Kadic v. Karadzic, 70 F.3d 232, 241-44 (2d Cir. 1995). 12 Id. at 245.

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examine the “law of nations” as it has evolved rather than the understanding of the “law of nations” at the time the ATS was passed in 1789.13 The Unocal cases mentioned above were the first corporate accountability lawsuits in which courts analyzed corporate liability under the ATS. Plaintiffs, Burmese villagers, alleged that they were subjected to murder, forced labor, rape, and other forms of torture in connection with Unocal’s construction of a gas pipeline through their region. The plaintiffs alleged that Unocal was liable for their damages because, inter alia, Unocal and its joint venture partners, the French oil firm Total and the Burmese state-owned Myanmar Oil and Gas Enterprise (MOGE), hired the Burmese military to provide security and other logistical support for the pipeline, with knowledge that the military had a long record of violent human rights abuses. The facts of the Unocal case are typical of this generation of ATS cases, in which the corporation enters into a business arrangement with a repressive regime or its instrumentalities to facilitate natural resource extraction.14 Several dozen corporate cases were filed in the decade after Doe v. Unocal.15 These cases raise a wide variety of legal issues in a wide range of factual settings. Though the more general principles discussed in previous chapters apply to these cases fully, some of the recurring features of the corporate cases are discussed below. B. CORPORATE LIABILITY UNDER THE ATS: CASES, REQUIREMENTS, AND LIMITATIONS Some corporate human rights cases allege that corporate employees directly committed human rights abuses. Most cases, however, rely on principles of aiding and abetting, joint venture, agency, or other secondary liability theories, which seek to hold corporations accountable for their assistance, support, or 13

Id. at 238-39. Corporate ATS cases have been filed in other situations too, including claims for historical justice which are addressed in Chapter 22. 15 See, e.g., Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (appeal pending) (Occidental in Colombia); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending); Bowoto v. Chevron Corp., Civ. No. 99-02506, 2006 U.S. Dist. LEXIS 63209 (N.D. Cal. Aug. 21, 2006) (Chevron in Nigeria); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005) (Exxon Mobil in Indonesia); Wiwa v. Royal Dutch Petroleum, 226 F.3d 88 (2d Cir. 2000) (Shell in Nigeria). Copies of the complaints in these cases are available at www.ccr-ny.org/humanrightsbook. 14

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other formal connection to human rights violations committed by the employees, soldiers, or security forces of the governments with whom they do business. The central issue in these cases is how to distinguish actionable corporate complicity in egregious human rights abuses from non-tortious incidents of “doing business” in foreign countries. 1.

ATS Cases Alleging Direct Corporate Abuses

Wiwa v. Royal Dutch Petroleum,16 Flores v. Southern Peru Copper Corp.,17 and Abdullahi v. Pfizer18 are representative of ATS cases seeking to hold corporations and their officers liable for their direct participation in human rights violations. Wiwa arose out of the internationally condemned execution of Ken Saro-Wiwa and other leaders of the Movement for the Survival of the Ogoni People. Saro-Wiwa and the others were killed by the Nigerian government because of their leading roles in protests against the environmental degradation of Ogoni lands by Shell and other multinational oil companies operating in Nigeria. The lawsuits were filed against two corporations, now merged into Royal Dutch Shell (Shell). The complaint alleged that Shell officials both bribed witnesses to testify against Saro-Wiwa and his co-defendants and participated in a public campaign against Ken Saro-Wiwa that led to his execution.19 These claims are still pending in the district court. In Abdullahi v. Pfizer, plaintiffs claimed that a North American pharmaceutical corporation failed to seek informed consent from parents before including their children in a trial of a new drug that the company knew caused serious joint and liver damage. The plaintiffs also argued that the Nigerian government had participated in the harms by authorizing Pfizer to conduct the study. In August 2005, the court granted the defendants’ motion to dismiss, concluding 16

226 F.3d 88 (2d Cir. 2000) (overturning dismissal of case on forum non conveniens and jurisdiction grounds), remand to 2002 WL 819887 at * 20-27 (S.D.N.Y. Apr. 19, 2002) (denying the defendants’ motion to dismiss for failure to state a claim). Litigation of a class action arising out of the same incidents, Kiobel v. Royal Dutch Petroleum Co., Civ. No. 02-7618 (S.D.N.Y. 2006), was coordinated with Wiwa for discovery purposes. 17 414 F.3d 233 (2d Cir. 2003). 18 Civ. No. 01-8118, 2002 U.S. Dist. LEXIS 17436 (S.D.N.Y. Sept. 16, 2002); vacated on other grounds, 77 Fed. Appx. 48 (2d Cir. 2003) (reversing lower court’s dismissal to Nigeria on grounds of forum non conveniens). 19 Wiwa also included indirect liability claims, alleging that the defendants acted in concert with, aided and abetted and conspired with the Nigerian security forces in committing other abuses. Similar claims against Chevron arising out of human rights violations in the Niger Delta are pending in Bowoto.

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that “[a] cause of action for Pfizer’s failure to get any consent, informed, or otherwise, before performing medical experiments on the subject children, would expand customary international law far beyond that contemplated by the ATS.”20 Another set of direct liability cases seeks to hold corporations liable for environmental injuries that are a direct result of the corporate defendant’s business operations. In one such case, Flores v. Southern Peru Copper Corp., Pervuian residents argued that pollution from the defendant’s mining operations had caused severe lung disease.21 The courts have resisted environmental claims, finding that the alleged harms do not meet the standard necessary to trigger ATS jurisdiction.22 2.

Indirect Corporate Action

In the majority of corporate cases, plaintiffs ask courts to find corporations liable for the actions of third parties, either government or private, based on a theory of derivative liability through joint action or because of their structural connection (e.g., through a joint venture or supply chain) to the project. For example, some of the claims in Wiwa v. Royal Dutch Petroleum23 and Bowoto v. Chevron Texaco Corp.24 concerned the violent repression of peaceful protestors against the actions of oil companies operating in Nigeria. In both cases, plaintiffs alleged that the oil companies conspired with or aided and abetted the Nigerian military’s commission of human rights violations. Similarly, a cluster of cases involves allegations that U.S. corporations operating in Colombia and Guatemala hired private paramilitary groups that violently suppressed labor union activity.25 20

Abdullahi v. Pfizer, Inc., Civ. No. 01-8118, 2005 U.S. Dist. LEXIS 16126, at *14 (S.D.N.Y. Aug. 9, 2005). 21

414 F.3d 233 (2d Cir. 2003)

22

In Flores, for example, the Second Circuit rejected the plaintiff’s reliance on general international human rights norms and found insufficient evidence of a specific international consensus to allow ATS claims for environmental harm to proceed. The Ninth Circuit, however, allowed a claim under the Law of the Seas Treaty to proceed in Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. See discussion of environmental claims in Chapter 7, Section F.1. 23 24

226 F. 3d 88 (2d Cir. 2000).

312 F. Supp. 2d 1229 (N.D. Cal. 2004). See Estate of Rodriquez v. Drummond Co., 256 F. Supp 2d 1250 (N.D. Ala. 2003) (alleging that Alabama mining company hired paramilitaries to torture, kidnap, and 25

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When governments maintain a financial and military interest in controlling natural resources, they may pursue that interest through violent suppression of civilian populations. Some ATS cases accuse corporations of facilitating that government repression. In Presbyterian Church of Sudan v. Talisman Energy, Inc., for instance, plaintiffs alleged that Talisman, a Canadian oil company, participated in the Sudanese government’s war against the separatist movement in southern Sudan.26 Plaintiffs alleged that Talisman knew that the Sudanese government was engaged in genocide and had attacked the civilian population in order to expand oil and gas exploration in Southern Sudan. Talisman was also alleged to have provided the government with logistical support for the war by supplying the Sudanese air force with fuel and granting it access to the company’s airstrip. As highlighted in these instances, ATS cases often arise in the context of armed conflicts, a context that has legal ramifications in terms of the available claims and defenses and that also poses practical challenges for litigants and the courts. When corporations assist a government engaged in an internal armed conflict, they may be charged with legal responsibility for abuses committed by that government. The determination of when civil liability attaches to these corporate activities is usually the central issue in corporate ATS cases—how much knowledge of and involvement in the violation must be shown to find a corporation legally responsible? As a result, the corporate cases have been largely responsible for the development of the aiding and abetting jurisprudence in ATS cases. Prior to the Court’s decision in Sosa, courts, without exception, found that corporations could be held liable for violations of international law on indirect, as well as direct, theories of liability.27 The pre-Sosa Ninth Circuit opinion in murder union leaders in Colombia); Sinaltrainal v. Coca Cola, Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003) (alleging that Coke used paramilitaries to murder, torture, and detain union leaders); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (alleging that Del Monte utilized quasi-governmental security forces to torture union leaders in Guatemala). 26 244 F. Supp. 2d 289, 308 (S.D.N.Y. 2003) (denying motion to dismiss), aff’d, 374 F. Supp. 2d 331 (S.D.N.Y. 2005), 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (granting defendant’s motion for summary judgment) (appeal pending). 27 See, e.g., Carmichael v. United Tech. Corp., 835 F.2d 109, 113-14 (5th Cir. 1988); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2003); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1091 (S.D. Fla. 1997).

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Unocal articulated the aiding and abetting standard derived from customary international law that has largely been adopted by later courts: Defendants are liable for aiding and abetting violations of international law when they provide knowing, practical assistance or encouragement that has a substantial effect on the perpetration of the crime.28 This standard is discussed in Chapter 10. The Supreme Court’s decision in Sosa did not address the issue of indirect liability. However, in the wake of Sosa, most courts have continued to recognize claims for indirect liability29 and to adhere to the federal common law approach30 adopted by the Sosa Court for determining a cause of action under the ATS. Courts, for instance, will consider the historical application of the ATS, modern precedent, and international standards for liability in determining whether a plaintiff has adequately alleged a claim. The court in In re Agent Orange Product Liability Litigation,31 a case brought against the manufacturers of Agent Orange and other herbicides for harms arising as a result of their use during the Vietnam War, employed this approach. After noting that U.S. courts have repeatedly and consistently determined that the ATS encompassed aiding and abetting liability, the court next sought evidence in the 1795 Attorney General Bradford opinion interpret28

See Doe v. Unocal Corp., 395 F.3d 932, 950-51 (9th Cir. 2002). While “moral support” was not at issue in Unocal, other courts have gone on to note that “moral support” is included in the actus reus definition for aiding and abetting liability. See Cabello v. Fernandez-Larios, 402 F.3d 1148, 1158-59 (11th Cir. 2005); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 54 (S.D.N.Y. 2005); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1356 (N.D. Ga. 2002) (relying on Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ¶¶ 192-249 (Dec. 10, 1998) in support its definition of aiding and abetting as knowing, practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime); accord Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 323-24 (S.D.N.Y. 2003). 29 See, e.g., Kiobel v. Royal Dutch Petroleum Co., Order, 02 CIV 7618, at *12 (S.D.N.Y. 2006) (“Prior to Sosa, courts consistently allowed ATS suits rooted in theories of secondary liability. . . . [W]here a cause of action for violation of an international norm is viable under the ATS, claims for aiding and abetting that violation are viable as well.”). 30 See Bowoto v. Chevron Corp., 2007 WL 2349341, at *6 (N.D. Cal. Aug. 14, 2007) (relying on federal common law to find that indirect liability is available for violations of international norms). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (finding that courts should look solely to international law to determine indirect liability in ATS claims). 31 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (appeal pending).

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ing the ATS,32 which was cited by the Sosa Court with approval,33 and the Talbot decision,34 in order to establish the historical application of aiding and abetting liability under the ATS.35 Finally, the court cited the International Criminal Tribunal for the former Yugoslavia (ICTY) aiding and abetting standard as articulated in Furundzija to conclude that international law does provide a “specific, universal, and obligatory” norm against aiding and abetting violations of international law.36 Post-Sosa, the Eleventh Circuit, the only circuit to rule directly on the issue, has affirmed the federal common law approach in finding that ATS claims against corporations could proceed on theories of indirect liability. In Aldana v. Del Monte Fresh Produce, N.A., Inc., the court held that a “claim for state-sponsored torture under the Alien Tort Act or the Torture Victim Protection Act may be based on indirect liability as well as direct liability.”37 The Ninth Circuit indicated agreement with this holding in Sarei v. Rio Tinto, PLC stating: “Courts applying the ATCA draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.”38 The court went on to cite the decision by Attorney General Bradford supporting aiding and abetting liability, and to take note of the fact that 32

1 Op. Att’y. Gen. 57 (1795). Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004). 34 Talbot v. Janson, 3 U.S. (3 Dall.) 133 (1795). 35 In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 54 (E.D.N.Y. 2005). The court in Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005), also relied on Attorney General Bradford’s opinion. In Mujica, plaintiffs sought compensation from Los Angeles-based Occidental Petroleum Corporation and its security contractors in Colombia for their role in a 1998 bombing raid on a village that took the lives of eighteen civilians. The Colombian air force dropped at least one cluster bomb on the village which is located not far from Occidental’s oil pipeline. In finding aiding and abetting liability, the court relied on the Bradford opinion to conclude that “aiding and abetting liability was encompassed by the then-prevailing understanding of international law.” Id. at 1174. 36 In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 54 (E.D.N.Y. 2005). See Prosecutor v. Furundzija, Case No. IT-95-17/1-T, ¶¶ 192-249 (Dec. 10, 1998). 37 416 F.3d 1242, 1247-48 (11th Cir. 2005). See also the decision in Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1158 (11th Cir. 2005), finding that the defendant “can be indirectly liable for plaintiff’s death on two different theories: (1) aiding and abetting or (2) conspiracy.” 38 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 33

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Congress, by statute, had established aiding and abetting liability for piracy, a crime that is considered to be the paradigmatic violation of the ATS.39 The district court in Bowoto v. Chevron Corp. followed the lead of the Sarei panel and adopted the federal common law approach to the issue of aiding and abetting.40 The court noted that there were good policy reasons to extend indirect liability under international law to private actors who aid and abet the violations of state actors. As noted in Chapter 10, a small number of courts have recently declined to recognize aiding and abetting as a viable theory of liability in ATS claims. The first of these cases was In re South Africa Apartheid Litigation (Apartheid).41 In Apartheid, the court declined to accept plaintiffs’ allegations that defendants had aided and abetted the South African government’s policy of apartheid, stating that there was “little that would lead this court to conclude that aiding and abetting international law violations is itself an international law violation that is universally accepted as a legal obligation.”42 Apartheid adopted a standard that, in effect, required the theory of liability (aiding and abetting), and not just the underlying norm, to rise to Sosa’s clearly defined, widely accepted standard. Critics of this approach have argued that this effectively amounts to a judicial repeal of the ATS. If the ancillary rules of decision in an ATS case have to meet the standard of being “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” then no rule of international law would ever meet the standard, because every rule of international law requires courts to use local rules to effect implementation of the international law prohibition.43 39

Id. 2007 WL 2349341, at *6-7 (N.D. Cal. Aug. 14, 2007). 41 346 F. Supp. 2d 538 (S.D.N.Y. 2004). 42 Id. at 549-51. The Apartheid case was argued on appeal in January 2006 and as of this writing had not yet been decided. The issue of aiding and abetting liability is the central issue in the appeal. See also Doe v. Exxon Mobil Corp., Civ. No. 01-1357, 2005 U.S. Dist. LEXIS 23557 (D.D.C. Oct. 14, 2005) (adopting the analysis of In re South African Apartheid Litigation); Corrie v. Caterpillar Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (appeal pending) (same). 43 Paul Hoffman & Daniel Zaheer, The Rules of the Road: Federal Common Law and Aiding and Abetting Under the Alien Tort Claims Act, 26 LOY. L.A. INT’L & COMP. L. REV 47, 53 (2003). 40

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The court in Presbyterian Church of Sudan v. Talisman Energy, Inc.44 articulated yet another variation of secondary liability. The court reaffirmed the availability of aiding and abetting liability under the ATS, but it imposed an intent requirement, based on language found in the Statute of the International Criminal Court, as part of its international law analysis. Prior to this case, no court had ever required plaintiffs alleging an aiding and abetting theory of liability to satisfy a criminal law intent requirement.45 The court’s analysis is based on its view that international law, not federal common law, sets the standard for all theories of liability. It is not clear whether this approach will be followed by subsequent courts. Whether and to what degree corporations that aid and abet violations of international law can be held liable is the major issue in several corporate cases pending on appeal as this book went to press, so it is difficult to predict what the rules governing such liability will be when the dust clears. It is certain, however, that ATS cases involving corporate defendants will continue to play a pivotal role in the development of aiding and abetting jurisprudence under the ATS. There has been relatively less development of other so-called indirect theories of liability in the corporate cases. However, at the time of the settlement in Doe v. Unocal, plaintiffs’ joint venture and agency theories were still pending in the state court proceedings and were pending on appeal in the Ninth Circuit in the federal proceeding. To date, the courts considering the issue have found joint venture, agency, and ratification to be viable theories under the ATS, at least at the motion to dismiss stage.46 It is likely that the litigation of these issues will intensify in the future. 44

453 F. Supp. 2d 633 (S.D.N.Y. 2006) (appeal pending). The Talisman court also found that conspiracy liability was not available under international law for crimes against humanity or war crimes. Id. at 664. However, the court did find that conspiracy to commit genocide was a viable theory of liability under international law and the ATS. Id. at 663. The court did not reach plaintiffs’ joint venture and agency claims because it found that they were not fairly presented in the operative pleading. Id. at 689-90. 46 See Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) (finding that allegations of joint venture liability were sufficient to support subject matter jurisdiction under the ATS), rev’d on other grounds, Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *5 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (suggesting, without deciding, that plaintiffs had adequately alleged vicarious liability under the ATS); Bowoto v. Chevron Corp., Civ. No. 99-02506, 2006 U.S. Dist. LEXIS 63209 (N.D. Cal. Aug. 21, 2006), at *14 n.8 (permitting plaintiffs to proceed on agency and ratification theories of liability); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1172 (C.D. Cal. 2005) (recognizing the viability of a claim 45

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3.

Corporate Structure Arguments: Parents and Subsidiaries

One of the recurring issues in the corporate cases is whether the parent corporation, usually based in the United States, can be found liable for the actions of subsidiary corporations or joint ventures engaged in a project. This issue is of practical importance because the foreign subsidiaries or joint ventures may not be subject to suit in the United States or in any forum other than the courts of the repressive regime where they operate. The potential liability of a parent for the conduct of its subsidiaries has been litigated in several ATS corporate cases to date. Several doctrines permit a parent company to be held liable for the acts of its subsidiaries or agents: (1) aiding and abetting (discussed above and in Chapter 10); (2) agency,47 including agency by ratification48 ; and (3) joint venture theories of liability.49 Finally, plaintiffs may attempt to pierce the corporate veil50 or proceed on an enterprise liability theory.51 based on joint venture liability under the TVPA). Additionally, while Sosa requires courts to apply federal common law rules to these determinations, at least one court, in the context of denying plaintiffs’ motion to amend, turned to state choice of law principles to assess whether, under joint venture or agency theories of liability, the plaintiffs’ claims would be “futile.” See Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 681-89 (S.D.N.Y. 2006). 47

The general principles of the federal common law of agency have been formulated largely based on the Restatement of Agency. See, e.g., Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 866 n.15 (7th Cir. 1998). Under those general principles, an agency relationship may be express or implied; in addition, a jury may infer from the factual circumstances that apparent agency authority exists. See Hasbrouck v. Sheet Metal Workers Local 232, 586 F.2d 691, 693 (9th Cir. 1978). Agency liability principles are well established in international law. See, e.g., Case Concerning the Barcelona Traction Power & Light Co. (Bel. v. Spain), 1970 I.C.J. 3, 215 (discussing principalagent liability as applicable to commercial relationships generally). Principal-agent liability is also widely adopted by civil law and other common law systems. 48 Under general principles of agency law, a person may ratify a prior act done by another without actual or apparent authority. RESTATEMENT (THIRD) OF AGENCY § 4.01 cmt. d (2006). A person ratifies an act by manifesting assent by conduct that is justifiable only on the assumption that the person so consents. 49 Joint venture liability exists where the parties (1) intended to form a joint venture; (2) share a common interest in the subject matter of the venture; (3) share the profits and losses of the venture; and (4) have joint control or the joint right of control over the venture. W. KEETON, PROSSER & KEETON ON TORTS, § 72 at 518 (5th ed. 1984). 50 The alter ego doctrine reflects the effort to prevent investors from manipulating the privilege of limited liability to the disadvantage of those who deal with the corporation.

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Two reported human rights cases address issues of corporate structure. In Bowoto v. Chevron Texaco Corp., the court considered the relationship between the two California-based defendants, a parent company and its subsidiary, and a Nigerian-based subsidiary that was a co-venturer with the Nigerian state-owned petroleum company.52 The complaint alleged that the Nigerian subsidiary acted together with the Nigerian security forces in committing human rights abuses to suppress protests against the Chevron operation in Nigeria. There was discovery on the first issue considered by the court, whether the corporate parent could be held liable for the conduct of the subsidiary. The court provided a useful description of the various doctrines employed to analyze the liability of a parent corporation, including: (1) “piercing the corporate veil” (which is often referred to as “alter ego” liability); (2) “single enterprise liability” (referred to in the employment context as “single employer liability”); (3) agency-based liability; (4) aiding and abetting liability; and (5) ratification.53 Noting that the inquiry is intensely fact specific, the court focused on several factors relevant to agency analysis: •

the degree and content of communications between the subsidiary and the defendant parent corporations, particularly including the communications during the incidents at issue;

See, e.g., STEPHEN B. PRESSER, PIERCING THE CORPORATE VEIL § 1:3 (2004). To establish an alter ego, it is necessary to show that recognition of the separate corporate existence would bring about an inequitable result. Traditional alter ego doctrine, of course, was not designed to deal with the issues raised by the corporate human rights cases. One open question in ATS cases is whether the courts will develop a federal common law approach to corporate structure issues to prevent corporations from insulating themselves from liability for serious human rights violations simply by creating a series of paper companies for that very purpose. This issue has not been reached in any of the pending cases. 51 There has been substantial opposition to limited liability for the constituent members of affiliated groups of corporations, such as parent and subsidiaries. Critics contend that all members of an affiliated group (the “enterprise”) should be treated as one legal entity which is liable for the debts of any member of the group. See PHILLIP I. BLUMBERG, THE LAW OF CORPORATE GROUPS; SUBSTANTIVE LAW §§ 5.01-5.02 (1995). (The term “enterprise liability” in this context is distinct from its use in products liability to refer to a situation where several defendants act negligently but it is impossible to determine which one caused an injury, so the burden shifts to each defendant to prove that it did not cause the injury.) 52 312 F. Supp. 2d 1229 (N.D. Cal. 2004). 53 Id. at 1235-40.

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• • •

•

the degree to which the defendants set or participated in setting policy, particularly security policy, for the subsidiary; the officers and directors whom the defendants and the subsidiary had in common; the reliance on the subsidiary for revenue production and acknowledgment of the importance of the subsidiary and other international operations to the overall success of defendants’ operations; and the extent to which the subsidiary, if acting as defendants’ agent, was acting within the scope of its authority during the events at issue.54

Bowoto held that the plaintiffs had presented sufficient facts from which a reasonable jury could find both that an agency relationship existed between the parent defendants and the foreign subsidiary and that the subsidiary’s alleged actions during the incidents at issue were within the scope of that agency relationship. The court also permitted the plaintiffs to proceed on their claims for aiding and abetting and ratification. However, the court found that the parent and subsidiary were not alter egos because there was an absence of evidence to support a finding that the incorporation was undertaken in bad faith or that respecting the corporate form would achieve an inequitable result.55 Because agency is the most likely model to employ in connecting a U.S. parent corporation to the overseas subsidiary, Bowoto is a useful model. In Sinaltrainal v. Coca Cola Co., the second reported decision in a human rights case touching on corporate structure, the district court rejected plaintiffs’ allegations of an agency relationship between Coca-Cola U.S.A. and Coca-Cola Colombia, its wholly owned subsidiary.56 Coca-Cola Colombia manufactured and distributed Coke products to bottlers in Colombia. The complaint alleged that members of a paramilitary unit shot and killed a leader in the Sinaltrainal trade union because he was attempting to organize employees at Bebidas, one of the Coke bottling plants in Columbia. Coca-Cola U.S.A. made all major decisions concerning the production, distribution, marketing, and presentation of its products, and communicated and enforced its directives to the Colombian bottlers through Coca-Cola Colombia. Plaintiffs alleged that Coca Cola Colombia and Bebidas were both alter egos or agents of Coca-Cola U.S.A., because the U.S. parent company 54 55 56

Id. at 1243. Id. at 1247. 256 F. Supp. 2d 1345 (S.D. Fla. 2003).

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controlled the day-to-day activities of the Colombia companies. The court found that neither Coca-Cola U.S.A. nor Coca-Cola Colombia had the contractual duty or right to control all aspects of the Bebidas plant’s operations, finding that their legal relationship was only that of a franchise, which authorized Coca-Cola U.S.A. to require Bebidas to meet certain quality standards. Given these specific fact findings, the court rejected the allegation that Coca-Cola U.S.A. had total control, without which the plaintiff could not prove alter ego or agency.57 In the state court proceedings in Doe v. Unocal, the court held a bench trial on the issue of whether the subsidiaries of Unocal—which were involved in the joint venture that was responsible for the human rights violations suffered by the plaintiffs in Burma—was the alter ego of the California-based parent companies that were defendants in the case.58 In January 2004, the state court judge refused to pierce the corporate veil of Unocal’s subsidiaries, using traditional alter ego principles, but denied a motion to dismiss the claims based on agency.59 A lurking question is whether human rights claims against parent companies should be litigated based on traditional corporate veil-piercing principles (e.g., undercapitalization and fraud) or whether the courts will recognize that there is a fundamental conflict between corporate efforts to acquire immunity by creating artificial corporate forms and the need to ensure accountability for gross human rights violations. Under a federal common law approach, courts in ATS cases might refuse to apply state law principles creating such immunities in favor of full accountability for serious human rights violations. C. DEFENSES IN CORPORATE HUMAN RIGHTS CASES Defenses and immunities in human rights cases, which are discussed in detail in Chapters 13-15, apply equally to cases filed against corporate defendants. Litigating against a corporation, however, changes the lawsuit in several important ways. First, corporate cases are always hotly litigated, with well-resourced defense attorneys raising every possible defense. Second, a footnote in Sosa suggested that the corporate human rights cases brought against dozens of corporations for their complicity in apartheid in South Africa might be 57

Id. at 1354. State court proceedings were pending at the time that the Unocal case settled. For an explanation of the complicated procedural history of the case, see supra note 6. 59 See Sandra Coliver, Jennie Green, & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complimentary Strategies, 19 EMORY INT’L L. REV. 169, 226 n.147 (2005). 58

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a good candidate for dismissal.60 This negative attention may lead the lower courts to take a new look at the available defenses in corporate human rights cases. Finally, using their access to the Department of State and the Justice Department, corporate defendants are often able to obtain executive branch intervention in support of their position, as discussed in Chapter 16. In a number of corporate cases, starting with the post-Sosa briefing in Doe v. Unocal, the administration of George W. Bush has taken the position that cases alleging aiding and abetting theories of liability in corporate human rights cases are inherently in conflict with U.S. foreign policy, because they interfere with foreign investment and the government’s ability to pursue constructive engagement policies.61 It has maintained this position even with countries such as Burma, where U.S. companies are prohibited by law from new investing. No case has yet accepted this general position as the basis for dismissing a case based on the political question doctrine, but this position and variations of it are likely to be asserted by the U.S. government in corporate cases, at least under the administration of President George W. Bush. The potential power of such interventions was apparent in Mujica v. Occidental Petroleum Corp.,62 where a district court relied on the political question doctrine to dismiss claims against an oil company and security company that were alleged to have worked with the Columbian armed forces to raid and bomb the plaintiffs’ village in order to protect the oil company’s operations from an insurgency. Plaintiffs’ family members were killed in the attacks.63 The district court deferred to the State Department’s Statement of Interest, which argued that several areas of foreign policy would be negatively affected by the case. The court concluded that proceeding with the litigation would indicate a “lack of respect” for the executive’s preferred approach of handling the bombing and relations with Colombia. However, the Ninth Circuit overturned a pre-Sosa decision based on the political question doctrine in the Sarei case, holding that the administration’s views need not be followed automatically.64 This issue is pending in several other cases, including the Apartheid case in the Second Circuit. 60

Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004).

61

See the discussion of these government submissions in Chapter 16.

62

381 F. Supp. 2d 1164 (C.D. Cal. 2005) (appeal pending).

63

Id. at 1195.

64

Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (concluding that “a political question is not presented” and reversing the district court’s dismissal of all claims as non-

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As discussed in Chapter 13, Section D, in footnote 21 of the Sosa decision, the Supreme Court raised the possibility of a “case-specific deference” defense in the context of the Apartheid cases. Ironically, the district court in those cases did not rely on the political question doctrine or “case-specific deference.” To date, there are no cases finding that such a doctrine exists independent of the other recognized defenses discussed above and in Chapter 13. Moreover, no court has held that forum non conveniens or the act of state doctrine must be applied more stringently to corporate defendants than to other defendants. Further, there appears to be nothing in the Sosa decision that would alter a court’s approach to these doctrines. D. APPLICATION OF THE TORTURE VICTIM PROTECTION ACT (TVPA) AND OTHER STATUTORY GROUNDS FOR CORPORATE LIABILITY The TVPA is discussed in more detail in Chapter 4. However, the issue of the application of the TVPA to corporations has been a contentious issue in corporate human rights cases, with the courts split to date on whether the TVPA is available against corporate defendants. The TVPA has been successfully applied to corporations in two district court cases, each in the context of cases arising out of the repression of union activities in Colombia.65 In both cases, the defendants argued that the use of the word individual in the TVPA’s statutory language was meant to refer only to natural persons. The courts rejected the argument, relying on a Supreme Court decision that found “individual” to be synonymous with the legal definition of “person” and thereby applicable to corporate entities.66 Further, the courts found that there was no legislative history indicating any intent to exempt corporations from the reach of the statute.67 These cases rejected the suggestion in an earlier case that the TVPA did not apply to corporations.68 justiciable political questions). The Sarei court also rejected an international comity defense. To date, none of the post-Sosa decisions in the corporate cases has relied on the international comity defense to dismiss a plaintiff’s claims, though several cases raising this issue are pending in appellate courts, including the Apartheid and Mujica cases. 65 Sinaltrainal v. Coca Cola, Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003); Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1257 (N.D. Ala. 2003). 66 Sinaltrainal v. Coca Cola, Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003) (citing Clinton v. New York, 524 U.S. 417, 428 n.13 (1998)). 67 Id. 68 See Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 382 (E.D. La. 1997).

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More recently, courts have accepted defense arguments that the language of the TVPA excludes corporations as defendants.69 This issue was pending before the Second and Ninth Circuits in 2007. In addition to the TVPA, other statutes may operate to hold corporations civilly liable for human rights abuses. At the federal level, the Racketeer Influenced and Corrupt Organizations Act (RICO) provides a civil remedy to persons injured by other persons or organizations that commit any action or threat—more than once and in a way that affects interstate commerce—involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in an obscene matter, or dealing in a controlled substance.70 An organization or person can be charged with violating RICO for conspiring to commit any of these acts. Plaintiffs bringing ATS claims against corporations often also bring RICO claims, though the majority of courts have rejected the argument.71 It remains unclear whether the courts will apply RICO in this context. E. STATE LAW HUMAN RIGHTS CLAIMS AGAINST CORPORATIONS Most plaintiffs in ATS corporate cases allege pendant state law claims arising out of the same facts, as discussed in Chapter 6, Section D. Some cases have involved federal and state court proceedings at the same time, either by design or because federal courts have dismissed pendant state claims, as in Doe v. Unocal. Given that state claims may be broader than the narrow range of 69

See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1176 (C.D. Cal. 2005) (appeal pending); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 56 (E.D.N.Y. 2005) (appeal pending); Bowoto v. Chevron Corp., Civ. No. 99-02506, 2006 WL 2604591 (N.D. Cal. Aug. 22, 2006). 70 RICO is discussed in Chapter 6. 71 Claims dismissed: Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002); Burnett v. Al Baraka Inv. & Dev. Corp., 349 F. Supp. 2d 765 (S.D.N.Y. 2005); In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004); Maugein v. Newmont Mining Corp., 298 F. Supp. 2d 1124 (D. Col. 2004); Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003). Claims allowed to go forward: Doe v. Reddy, Civ. No. 02-05570, 2003 U.S. Dist. LEXIS 26120 (N.D. Cal. Aug. 4, 2003); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 22, 2002); Doe v. Gap, Inc., Civ. No. 01-0031, 2001 U.S. Dist. LEXIS 25035 (D.N. Mar. I. Nov. 26, 2001).

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claims allowed under the ATS after Sosa, it is likely that such claims will be brought with increasing frequency. Most issues discussed in the context of the ATS apply to state law claims as well. Defenses such as the political question or the act of state doctrine, for example, apply whether a case is brought in federal or state court. The foreign affairs doctrine, however, applies only to state claims, whether brought in federal or state court. This defense, discussed in Chapter 13, Section E, has been raised with increasing frequency in corporate human rights cases. The availability and scope of state law claims and defenses are beyond the scope of this book. These claims depend on the state in which the case is brought, and on the state choice of law rules. In addition, some states may have specific statutes that authorize additional claims in human rights cases. For example, several plaintiffs have filed claims under California’s unfair competition statute.72 In one of the more interesting cases raising state law claims, workers in plants in several countries, including China and Bangladesh, sued Wal-Mart in federal court based largely on state law claims, including the argument that they are third-party beneficiaries of Wal-Mart’s Code of Conduct, which promises that suppliers will treat their workers in accordance with human rights standards.73 F. GOVERNMENT CONTRACTORS Human rights cases filed against corporations working with the U.S. government raise all of the issues discussed above as well as potential immunity defenses. Several corporations in these cases have claimed immunity under the Federal Tort Claims Act (FTCA)74 or under the court-created, common law “government contractor defense” (also known as the military contractor defense).75 To date, no U.S. government contractor has successfully obtained immunity from human rights claims based on these defenses. 72

CAL. BUS. & PROF. CODE § 17200. See Kasky v. Nike Corp., Inc., 45 P.3d 243 (Cal. 2002) (finding that Section 17200 is applicable to a corporation’s false claims about its human rights practices). See discussion in Chapter 6, Section D. 73

The claims were dismissed in March 2007, with the court holding that plaintiffs did not allege an injury cognizable under the relevant state laws. Doe v. Wal-Mart Stores, Inc., Civ. No. 05-07307, at 10-11 (C.D. Cal. Mar. 30, 2007) (appeal pending), available at www.ccr-ny.org/humanrightbook. 74 75

28 U.S.C. §§ 1346(b), 2671-2680.

Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7 (S.D.N.Y. 2005); Jama v. U.S.I.N.S., 343 F. Supp. 2d 338 (D.N.J. 2004). See also Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006).

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1.

The Scope of the Federal Tort Claims Act (FTCA)

As discussed in Chapter 11, the FTCA established a comprehensive set of rules for when the United States will assume responsibility for the wrongful or negligent acts of anyone in its employ.76 Independent contractors, however, are not accorded the protections available to government employees: The government will not assume responsibility for the wrongful and negligent actions of its contractors unless it supervises and controls their day-to-day activities.77 Therefore, the first issue to consider in a case against a government contractor is whether the defendant is an independent contractor; if not, the defendant will be entitled to the same immunities available to a government employee, and the immunity provisions of the FTCA will apply.78 2.

The Government Contractor Defense

The government contractor defense, a common law defense that operates in addition to the FTCA, was developed to address a state tort claim against a private contractor who manufactured equipment for the United States military. In Boyle v. United Technologies Corp.,79 the Supreme Court held that in certain circumstances contractors that supply military equipment to the United States have a defense to state tort liability for design defects in that equipment. The state tort actions in Boyle were brought by the family of a marine helicopter 76

See 28 U.S.C. § 2671: As used in this chapter and sections 1346(b) and 2401(b) of this title, the term “Federal agency” includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. (Emphasis added.) 77 28 U.S.C. § 2679(b). See, e.g., United States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973) (finding that the federal government did not control the day-to-day operations of a county jail, which contracted with government to provide for care and custody of prisoners). Under this test, the required day-to-day supervision may not be present even where the government exercises significant control over implementation of the contract. See Lathers v. Penguin Indus., Inc., 687 F.2d 69 (5th Cir. 1982) (government directed how hand grenade fuses were to be made and had a right to prescribe safety standards, perform safety inspections, and direct contractor to cease production if unsafe conditions existed; however, day-to-day operations were conducted by contractor). 78 See Chapter 11. 79 487 U.S. 500 (1988).

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co-pilot who drowned during a training exercise because he was unable to escape from the crashed helicopter. The Supreme Court held that state law liability for design defects in military equipment is preempted when the United States approved reasonably precise specifications, the equipment conformed to those specifications, and the supplier warned the United States about dangers in the use of the equipment that were known to the supplier but not to the U.S. government. The military contractor carries the burden of establishing the elements of the defense.80 Several potential issues are raised by efforts to apply the Boyle doctrine to a human rights case. The first set of questions concerns the scope of defense. Does the defense bar federal claims as well as state claims? Does the defense reach beyond military contractors to other government contractors? Is the defense only applicable to manufacturers as opposed to service providers? The answers to these questiond are uncertain and may depend on the jurisdiction. In Boyle, the Court narrowly tailored its decision to the particular facts presented in that case and did not seek to apply its decision beyond them: “This case requires us to decide when a contractor providing military equipment to the Federal Government can be held liable under state tort law for injury caused by a design defect.”81 Since Boyle, many courts have adopted a similarly narrow approach to the application of the defense.82 However, other courts have expanded the defense to non-military government contractors.83 Still others have applied the doctrine to the provision of services.84 Courts have also applied the defense to federal, as well as state, tort claims.85 Depending on the jurisdiction, plaintiffs’ counsel may argue that the application of the government contractor 80

See, e.g., Snell v. Bell Helicopter Textron, 107 F.3d 744, 746 (9th Cir. 1997) (“The military contractor defense is an affirmative defense; [the contractor] has the burden of establishing it.”). 81 Boyle v. United Technologies Corp., 487 U.S. 500, 513 (1988) (emphasis added). 82 See, e.g., Snell v. Bell Helicopter Textron, 107 F. 3d 744 (9th Cir. 1997) (“[I]n the Ninth Circuit [the contractor defense] is only available to contractors who design and manufacture military equipment.”). The Fifth Circuit has adopted an even narrower interpretation of the defense, finding it available only “in cases of defective design, not in cases of defective manufacture.” Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 245 (5th Cir. 1983). 83 See, e.g., Carley v. Wheeled Coach, 941 F.2d 1117 (3d Cir. 1993). 84 See, e.g., Scainetti v. U.S. ex rel. Federal Bureau of Prisons, Civ. No. 01-9970, 2002 WL 31844920 (S.D.N.Y. Dec. 18, 2002). 85 See, e.g., McKay v. Rockwell Int’l Corp., 704 F.2d 444 (9th Cir. 1983).

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defense is restricted to the provision of equipment. Counsel may also challenge the applicability of the doctrine when the contracting agency is not the U.S. military but some other arm of the federal government. Counsel may also argue that the defense cannot bar a federal tort claim. Another set of questions involves the content of the contract. As formulated in Boyle, the defense protects contractors only where “the contractors cannot comply with both their federal contractual obligations and state law.”86 If there is no contractual requirement that the defendant engage in the conduct at issue, the defense will not apply. Even if the contract appears to require the human rights violation, that requirement should not provide a defense because there is no public policy or federal interest in enabling the government to engage in an unlawful act. In Yearsley v. W.A. Ross Construction Co.,87 the Supreme Court considered that the liability of a government contractor for work performed on a government contract was related to the issue of whether “what was done was within the constitutional power of Congress.” The defendant, a construction company that built a dike under a government contract, was sued by landowners to recover damages for washing away part of their land on the Missouri river. The Court’s analysis of the contractor’s claim of immunity began with recognition that if the defendant’s authority to carry out the project was validly conferred, “that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.”88 However, Yearsley noted that the defense would not apply: (1) if the contractor exceeded the authority given to it by the federal government; or (2) if the federal government’s authority was not validly conferred.89 In re Agent Orange Product Liability Litigation applied the Yearsley doctrine to a human rights claim, holding that the government contractor defense does not protect a contractor from liability for human rights violations.90 Therefore, counsel may argue either that the contract did not require the alleged human rights violations—or that if it did, it would violate U.S. law and policy.91 86

Boyle v. United Technologies Corp., 487 U.S. 500, 504-05 (1988).

87

309 U.S. 18, 20-21 (1940).

88

Id. at 21-22.

89

Id. at 21.

90

373 F. Supp. 2d 7, 18 (E.D.N.Y. 2005).

91

See, e.g., Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006), where the plaintiffs argued both that the contract did not require torture and did, in fact, prohibit the torture alleged, and, further, that there was no conflict between any federal policy and the

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Boyle and its progeny offer another response to the contractor’s claim of immunity where the federal interest promoted by the human rights claim does not conflict with the federal interest promoted by the contract. As Boyle held, the fact that the contract is in an area of uniquely federal interest is a necessary, but not a sufficient, condition for the displacement of tort claim. “Displacement [of the tort law] will occur only where . . . a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of [tort] law.’”92 To ascertain the federal interests, Boyle looked to the policies underlying FTCA exceptions to the waiver of immunity to discern congressional intent in the context of government procurement. Considering the discretionary function exception to the FTCA,93 the Court found that there was a conflict between the state tort liability for the design defect and the need to permit the military discretion to balance such factors as greater safety against greater combat effectiveness.94 In Koohi v. United States, the court looked to the “combatant activities” exception to the FTCA and found that one purpose of the exception “is to recognize that during wartime encounters no duty of reasonable care is owed to those against whom force is directed as a result of authorized military action.”95 The Koohi court applied the exception to the private contractor, because imposing liability on the civilian manufacturer of a weapon used in an authorized military action would create a duty of care where Congress intended “that none exists.”96 The defendant may argue that each exception to the waiver of immunity in the FTCA requires preemption of tort claims against the government contractor.97 However, Boyle and Koohi require a specific analysis of the purposes of the exception and the significance of its application to a private party.98 In the prohibition against torture. The court’s decision on the motion to dismiss did not reach the government contractor defense issue. 92

Boyle v. United Technologies Corp., 487 U.S. 500, 507 (1988).

93

28 U.S.C. § 2680(a). Boyle v. United Technologies Corp., 487 U.S. 500, 511 (1988).

94 95 96 97

976 F.2d 1328, 1137 (9th Cir. 1992). Id. See 28 U.S.C. § 2680.

98 See also Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 17-20 (D.D.C. 2005) (discussing the possible application of other FTCA exceptions and the need to examine the rationale behind the exception).

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context of claims of human rights violations, immunizing the private perpetrator will not advance any federal interest. What federal interest, for example, is served by protecting a torturer? In the context of the “war against terrorism” and the conflict in Iraq, defendants have argued that the combatant activities exception applies. However, while courts have found that the “combatant activities” exception applies to members of the military because of the special relationship between the federal government and the military and because of the need to subject all members of the military to the Uniform Code of Military Justice,99 no such purpose is served by the application of immunity to private contractors. The government contractor defense has been invoked in several reported ATS cases. In Jama v. U.S.I.N.S., a private contractor operated a detention facility for the INS.100 The court found that, although the corporation was a “state actor” for purposes of liability under the ATS, it was not entitled to sovereign immunity under the FTCA.101 In re Agent Orange Product Liability Litigation involved claims against the manufacturers of Agent Orange, a defoliant used during the Vietnam War.102 The court held that the government contractor defense did not apply to violations of internationally recognized human rights,103 relying on jurisprudence developed during the post-World War II tribunals, which held private individuals criminally liable for their participation in Nazi-era crimes against humanity.104 However, with respect to state law tort claims against the same manufacturers based on the same facts, the Second Circuit held that the government contractor defense applied.105 Ibrahim v. Titan Corp. involved claims against private corporations and individuals working as translators and interrogators at Abu Ghraib prison and 99

Feres v. United States, 340 U.S. 135 (1950), held that the combatant activities exception precluded suit against the military even where the incident occurred outside of combat because of the unique and “distinctively federal” relationship between the United States and members of the armed forces. Id. at 143. See also United States v. Stanley, 483 U.S. 669, 681 (1987), and Chappell v. Wallace, 462 U.S. 296, 300-02 (1983), which held that permitting soldiers to raise tort claims against their superiors or the military as an institution would undermine essential military discipline. 100 343 F. Supp. 2d 338 (D.N.J. 2004). 101 28 U.S.C. §§ 1346(b), 2671-2680. 102 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (appeal pending). 103 Id. at 18. 104 Id. 105 In re Agent Orange Prod. Liab. Litig., 818 F.2d 187 (2d Cir. 1987).

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other detention facilities in Iraq maintained by the U.S. military.106 In a motion to dismiss, defendants argued that they were entitled to immunity under the government contractor defense. The court declined to rule on the defense in the context of a motion to dismiss, holding that it is an affirmative defense with the burden of proof on the defendants.107 Nevertheless, the court set out factual issues that would affect a ruling on the defense, including: Was the defendant an “independent contractor” outside the scope of the FTCA? What were their contractual responsibilities? To whom did they report? How were they supervised? What were the structures of command and control?108 These questions are a helpful guide to the factual issues that surround the defense once it is determined that it might apply. 106

391 F. Supp. 2d 10 (D.D.C. 2005). Id. at 18. Note that the court concluded that the affirmative defense was a legal issue to be decided by the court. Id. at 18 n.5 (citing Mitchell v. Forsyth, 472 U.S. 511, 523-27 (1985)). In Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006), the court reaffirmed its decision in Ibrahim. 108 Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 19 (D.D.C. 2005). 107

Part V DEFENSES AND IMMUNITIES

This part deals with a variety of defenses to human rights claims. Such cases often trigger issues concerning the role of the courts, on the one hand, and the executive and legislative branches, on the other. Chapter 13 deals with the political question doctrine and other defenses that assert limitations on the ability of the courts in matters touching on foreign affairs. Chapter 14 analyzes claims to immunity that foreign governments and officials may assert. Chapter 15 addresses a series of miscellaneous defenses: the statute of limitations, forum non conveniens, and the exhaustion of domestic remedies. Finally, Chapter 16 discusses the mechanisms by which the executive branch presents its views to the courts and the deference afforded to those views.

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CHAPTER 13 FOREIGN AFFAIRS AND SEPARATION OF POWERS

Most international human rights cases in U.S. courts involve abuses committed in foreign countries. Most also have some connection to a foreign government or to the U.S. government. Even where a government is not a party to the case, the practices of a government are often at issue. Despite these connections, governments are not always hostile to U.S. human rights litigation. Foreign governments have been supportive of some lawsuits, particularly when the abuses were committed by former regimes no longer in power or by multinational corporations, or where the foreign citizens have no means of seeking redress in the courts of their own country. Moreover, the U.S. government under some administrations has viewed human rights litigation as consistent with U.S. foreign policy.1 Nevertheless, defendants often assert that litigation of human rights claims in U.S. courts will interfere with the sovereign rights of a foreign government, with U.S. foreign policy, or with the powers of the executive branch of the U.S. government. Under the administration of President George W. Bush, these claims have often received enthusiastic support from the executive branch. This chapter addresses the principal doctrines—political question, act of state, comity, “case-specific” deference to the U.S. executive branch, and the foreign affairs doctrine—through which claims of interference with U.S. foreign policy or with foreign sovereignty may be raised, usually through a motion to dismiss a case as non-justiciable.2 In general, the defendant bears the burden of demonstrating why the court should decline to hear a claim on one of these grounds; the issues may therefore be waived by the defendant’s default or failure to assert them before or at the time of filing an answer. Some courts, however, consider the issues sua sponte or in response to an executive branch request or a statement of concern from a foreign government. The mechanisms by which the executive branch states its views to the courts and the degree of deference afforded to those views are both discussed in Chapter 16. 1

See discussion of the role of the U.S. executive branch in Chapter 16. For a general discussion of justiciability, see ERWIN CHEMERINSKY, FEDERAL JURISDICTION 44-48 (4th ed. 2003). 2

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338 International Human Rights Litigation in U.S. Courts

A. POLITICAL QUESTION DOCTRINE The political question doctrine directs the court to decline to decide a case otherwise properly before it because the dispute presents issues constitutionally assigned to the political branches of the government.3 Commentators regularly criticize the constitutional underpinnings of the doctrine and its inconsistent application.4 Compounding the confusion, the courts have split on whether the doctrine is jurisdictional or merely affects justiciability.5 For at least the first 20 years of modern Alien Tort Statute (ATS)6 jurisprudence, no court had dismissed a case under the political question doctrine.7 As discussed in this section, a few cases involving World War II or other historic justice claims have since been dismissed on this basis, although the courts have permitted many such claims to proceed.8 Political question 3

Baker v. Carr, 369 U.S. 186 (1962). The origins of the doctrine can be traced to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), where the court noted, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” 4

See CHEMERINSKY, supra note 2, at 143-50. Professor Erwin Chemerinsky concludes that the doctrine can only be understood by looking at the specific areas where the Supreme Court has applied it, none of which apply to human rights cases. 5 Compare Kadic v. Karadzic, 70 F.3d 242, 249 (1999) (noting that the court had jurisdiction and describing the political question as a “nonjurisdictional, prudential” doctrine), with Corrie v. Caterpillar, 2007 WL 2694701 (9th Cir. Sept 17, 2007) (without briefing on the issue, court held that doctrine was jurisdictional). This distinction will probably not make a practical difference in most cases, given that courts often look outside the record when the defense is raised, particularly to consider U.S. government Statements of Interest. 6 28 U.S.C. § 1350. 7 Only the concurring opinion of Judge Robb in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 823 (D.C. Cir. 1984), supported dismissing an ATS claim as a political question. Tel-Oren involved allegations of terrorism that Judge Robb, at the time, believed was not definable as an international law violation. The case was also brought against the Palestine Liberation Organization (PLO), not an individual, and Judge Robb was reluctant to permit suit against an organization not recognized by the United States. His reasoning was undercut in a subsequent case involving the PLO, Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp. 854 (S.D.N.Y. 1990), which upheld the right to sue the PLO for the murder of a ship passenger on the high seas. 8 See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 469 (D.N.J. 1999); Anderman v. Federal Republic of Austria, 256 F. Supp. 2d 1098, 1115 (C.D. Cal. 2003). In Whiteman v. Dorotheum GmbH & Co., 431 F.3d 57, 74 (2d Cir. 2005) and UngaroBenages v. Dresdner Bank, A.G., 379 F.3d 1227, 1239 (11th Cir. 2004), the courts

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dismissals in other fact settings remain rare; one has been reversed, and none had been upheld on appeal as of May 2007.9 Nevertheless, since defendants routinely seek to dismiss human rights claims on this basis, litigants should carefully consider the possible application of the doctrine to their cases. 1.

Overview of the Doctrine

Defendants in human rights litigation often argue that, because the litigation involves actions taken overseas by foreign officials or actions taken or endorsed by the U.S. executive branch, the cases implicate foreign policy issues that must be decided by the political branches, not the courts. Although foreign affairs is one of the areas to which the Supreme Court has applied the political question doctrine, the Court has made clear that a case should not be dismissed as a political question just because it may affect foreign policy. “[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”10 Professor Chemerinsky identifies only four narrow areas in which the Court has dismissed claims because of their foreign affairs implications; none of these would apply to a human rights claim based on a widely accepted international norm.11 dismissed claims arising out of World War II where the executive branch had entered into agreements creating alternative dispute mechanisms. 9 See, e.g., Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *6-10 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (reversing district court’s political question dismissal). Of the four district court cases dismissing on political question grounds, two were on appeal to the Ninth Circuit as of early 2007 and likely to be reconsidered in light of the Sarei decision. Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1032 (W.D. Wash. 2005) (appeal pending); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1190-91 (C.D. Cal. 2005) (appeal pending). The other two cases both involved Israeli defendants; in both, the district courts issued short opinions that appeared to be particularly sensitive to U.S. concerns about the impact of the claims on Israel and Israeli officials. Doe v. Israel, 400 F. Supp. 2d 86, 111-12 (D.D.C. 2005); Matar v. Dichter, 2007 WL 1276960 (S.D.N.Y. May 2, 2007). In addition, a string of cases against U.S. officials, also dismissed on political question grounds, raise troubling concerns about the broad application of the political question doctrine. The U.S. defendant cases are discussed in Chapter 11, Section B. 10 Baker v. Carr, 369 U.S. 186, 211 (1962). 11 CHEMERINSKY, supra note 2, at 155-58. The four categories are: determination of when a war begins or ends; recognition of foreign governments; issues relating to ratification and interpretation of treaties; and challenges to a president’s war powers. Id.

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Baker v. Carr sets forth the standard formulation of a political question, often described as a list of separable factors rather than a coherent doctrine12 : Prominent on the surface of any case held to involve a political question is found: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.13 Courts in human rights cases often engage in a close examination of each of the six factors and may dismiss if even one of them is present.14 Nevertheless, non-justiciability remains the exception, not the rule.15 The U.S. government amicus brief submitted to the Second Circuit in Fila´rtiga v. Pen˜a-Irala16 at the start of the modern human rights litigation specifically rejected the argument that judicial resolution of ATS suits is barred by the political question doctrine.17 12

Id. at 146. Id. at 217 (enumeration added). 14 See, e.g., Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005); Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *6-10 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822; Whiteman v. Dorotheum GmbH & Co., 431 F.3d 57, 70 (2d Cir. 2005). 15 See, e.g., Doe v. Bush, 323 F.3d 133, 140 (1st Cir. 2003) (emphasizing the narrow application of the doctrine). 16 630 F.2d 876, 889-90 (2d Cir. 1980). 17 Brief for the United States as Amici Curiae, Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), 1980 WL 340146, available at www.ccr-ny.org/humanrightsbook. 13

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The courts are properly confined to determining whether an individual has suffered a denial of rights guaranteed him as an individual by customary international law. Accordingly, before entertaining a suit alleging a violation of human rights, a court must first conclude that there is a consensus in the international community that the right is protected and that there is a widely shared understanding of the scope of this protection. When these conditions have been satisfied, there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.18 Although acknowledging that such cases are likely to implicate foreign policy considerations, the brief concluded that “the protection of fundamental human rights is not committed exclusively to the political branches of government.”19 Aside from the historic justice cases, the large majority of the courts applying the Baker factors have held that the adjudication of human rights claims was a task constitutionally committed to the judicial branch of government and that the application of international norms to egregious human rights violations triggered none of the concerns cited by Baker. The Ninth Circuit, for example, reversed a district court dismissal of an ATS claim, holding that claims arising out of a civil war in Papua New Guinea “merely ‘touch[ ] foreign relations,’ ” and raised no political question.20 2.

Applying the Six Baker v. Carr Factors to Human Rights Litigation

The Supreme Court has noted that “[t]hese tests are probably listed in descending order of both importance and certainty.”21 Factor One: Textual Commitment to Other Branch of Government. The clearest factor defining a non-justiciable political question is a “textually 18

Id. at 46 (footnote omitted). Id. at 45. 20 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *8 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (quoting Baker v. Carr, 369 U.S. 186, 211 (1962) (alteration in original)). The Sarei decision distinguished Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005), in which the Ninth Circuit affirmed a political question dismissal of war crimes claims arising out of World War II. See discussion of Sarei and Alperin in the next section. 21 Vieth v. Jubelirer, 541 U.S. 267, 278 (2004). 19

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demonstrable constitutional commitment of the issue to a coordinate political department,”22 that is, a constitutional assignment of the issue to the executive or Congress. Human rights cases do not fall within this constitutional category: decisions regarding liability for violations of law and damages to those injured fall within the constitutionally assigned tasks of the judiciary branch. As the Second Circuit stated in Kadic v. Karadzic, “The department to whom this issue has been ‘constitutionally committed’ is none other than our own—the Judiciary.”23 The Ninth Circuit recently reaffirmed its adherence to this view, stating that “resolution of claims brought under the ATCA has been constitutionally entrusted to the judiciary.”24 The court noted that the Supreme Court’s decision in Sosa did not question this holding, and concluded that “it is not tenable to insist that [human rights] claims . . . are not entrusted to the judiciary.”25 Standards of liability for international torts turn on “familiar questions of responsibility for personal and property injuries” and do not trigger political question concerns merely because the case takes place in an international context.26 In Kadic, for example, Croat and Muslim citizens of Bosnia-Herzegovina brought suit against the president of the illegal Bosnian-Serb regime, alleging that he exercised command authority over military forces engaged in a genocidal war in Bosnia-Herzegovina. Observing that the “doctrine is one of ‘political questions’ and not ‘political cases,’ ” the court reiterated that 22

Baker v. Carr, 369 U.S. 186, 211 (1962). 70 F.3d 232, 249 (2d Cir. 1995) (quoting Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir. 1991)). Although the Kadic case arose in the context of an ongoing war, with the U.S. government deeply involved in settlement negotiations and other diplomatic efforts, the executive branch took the position that the case did not raise a political question. Id. at 250. The Second Circuit noted that a contrary position would not have been binding: Though even an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication, the Government’s [stated position] re-enforces our view that adjudication may properly proceed. Id. 24 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *6 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 25 Id. at *7. 26 Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp. 854, 860 (S.D.N.Y. 1990). 23

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a case is not non-justiciable simply because it “present[s] issues that arise in a politically charged context.”27 Where liability is created by federal statutes such as the ATS, the Torture Victim Protection Act (TVPA),28 or the “state sponsors of terrorism” exception to the Foreign Sovereign Immunties Act (FSIA),29 the issue is clearly delegated to the judiciary, and the courts have an obligation to hear the dispute. As the Supreme Court made clear in Japan Whaling Association v. American Cetacean Society,30 “under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.” If the courts were to dismiss claims under human rights statutes just because they involve foreign affairs, the statutes would be nullities: The very essence of most human rights claims is that they concern acts committed in foreign countries. Under certain circumstances, however, courts may find that particular issues arising in ATS cases have been “constitutionally committed to a coordinate political department.” In Alperin v. Vatican Bank,31 for example, a case against the Vatican Bank for unjust enrichment and other abuses stemming from the Vatican’s involvement with the Ustasha during and after World War II, the court dismissed some of the plaintiffs’ claims on political question grounds, citing the first Baker factor: Determining whether the Vatican Bank was unjustly enriched by profits derived from slave labor would . . . necessitate that we look behind the Vatican Bank and indict the Ustasha regime for its wartime conduct. We are not willing to take this leap. Condemning—for its wartime actions—a foreign government with which the United States was at war would require us to “review[] an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been ‘constitutionally commit[ted].’ ”32 27

Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995) (quoting Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir. 1991), and Baker v. Carr, 369 U.S. 186, 211, 217 (1962)). 28

28 U.S.C. § 1350 (note).

29

28 U.S.C. § 1605(a).

30

478 U.S. 221, 230 (1986).

31

410 F.3d 532 (9th Cir. 2005).

32

Id. at 561. The Alperin court, however, refused to dismiss plaintiffs’ property claims, holding that they were “garden-variety legal and equitable claims.” Id. at 548-51. “Reparation for stealing, even during wartime, is not a claim that finds textual commitment in the Constitution.” Id. at 551.

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In Sarei v. Rio Tinto, PLC, a case involving war crimes committed in Papua New Guinea, the Ninth Circuit distinguished Alperin, stating that the holding applied “only to the narrower category of war crimes committed by enemies of the United States” during a world war.33 Factor Two: Lack of Judicially Discoverable and Manageable Standards. A second ground for invoking the political question doctrine centers on whether there are judicially discoverable and manageable standards to decide the case. The court in Kadic underscored that “Filartiga established that universally recognized norms of international law provide judicially discoverable and manageable standards for adjudicating suits brought under the ATS.”34 Cases to date have demonstrated that norms of international human rights law are clearly definable, have been defined and employed in U.S. statutes and treaties, and provide no less guidance than U.S. constitutional and statutory standards.35 Factor Three: The Impossibility of Deciding Without an Initial Policy Determination. Alperin also held that the third Baker factor—whether adjudication was impossible without an initial, discretionary, policy determination—came into play because judicial review of slave labor claims during World War II would require the court to condemn a U.S. enemy for its conduct during that war when the executive chose not to do so.36 Courts have carefully distinguished policy determinations from legal rulings. As the Second Circuit stated in Kadic, “[U]niversally recognized norms of international law provide judicially discoverable and manageable standards for adjudicating suits brought under the Alien Tort Act, which obviates any need to make initial policy decisions of the kind normally reserved for nonjudicial discretion.”37 To the extent that foreign law may apply, the defendant may argue that the case should be dismissed to avoid becoming entangled in policy questions necessary to interpret the laws of another country. However, the Federal Rules of Civil Procedure anticipate the need to prove foreign law.38 As the court emphasized in Republic of the Philippines v. Marcos: [Q]uestions of foreign law are not beyond the capacity of our courts. . . . Our courts have had no difficulty in distinguishing the 33

Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *9 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 34 Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). 35 See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 36 Alperin v. Vatican Bank, 410 F.3d 532, 561 (9th Cir. 2005). 37 Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). 38 See FED. R. CIV. P. 44.1 (determination of foreign law).

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legal acts of a deposed ruler from his acts for personal profit that lack a basis in law. As in the case of deposed Venezuelan ruler, Marcos Perez Jimenez, the latter acts are as adjudicable and redressable as would be a dictator’s act of rape.39 As noted elsewhere, courts routinely make choice of law determinations in international litigation of all types. Moreover, other doctrines, such as international comity, may be better suited to resolve such issues. Factor Four: Expressing Lack of the Respect Due Coordinate Branches of Government. Recent cases have been dismissed under the fourth Baker factor, based on a finding that it is “impossible for the court to undertake independent resolution of the case without expressing a lack of respect due coordinate branches of government.” The issue in Joo v. Japan, for example, was whether the peace treaties that Japan had signed with third countries extinguished the war claims of citizens of those third countries against Japan.40 Deferring to the executive branch, which argued that adjudication of the case “would undo a settled foreign policy of state-to-state negotiation with Japan” and disrupt Japan’s relations with China and Korea, the court dismissed the case on political question grounds.41 Joo involved two rather unique factors that may have contributed to the political question dismissal. First, it involved an ongoing dispute between two U.S. allies (Japan and Korea) over different interpretations of the treaty.42 Second, the executive provided the court with an extensive history of executive actions to resolve the claims without litigation.43 The Second Circuit has also dismissed a case that presented a conflict with executive agreements settling World War II claims, on the basis of the fourth Baker factor. Whiteman v. Dorotheum GmbH & Co. involved a suit against the Republic of Austria seeking damages for lost assets and other abuses during World War II on behalf of Austrian Jews and their descendants.44 The U.S. government intervened to “inform the Court of its foreign policy interests with regard to claims for restitution or compensation by Holocaust survivors and other victims of the Nazi era” and urged the court to dismiss the case in 39

862 F.2d 1355, 1361 (9th Cir. 1988). 413 F.3d 45 (D.C. Cir. 2005). 41 Id. at 52. 42 Id. at 51. 43 See Statement of Interest of the United States of Am. at 23-27, Joo v. Japan, No. 00CV-2288 (D.D.C. filed Apr. 27, 2001), available at www.ccr-ny.org/humanrightsbook. 44 431 F.3d 57 (2d Cir. 2005). 40

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deference to these interests.45 The executive branch noted that it had been engaged in 50 years of diplomatic negotiation with the government of Austria regarding the settlement of Nazi-era claims and that resolution of Whiteman, the final pending case, was delaying authorization of payments from the comprehensive settlement fund to many other victims. Over a strong dissent, the Second Circuit held that “deference to the Executive is appropriate in certain cases” and that “the case at bar is one such case.”46 Applying the political question doctrine, the court found that this case met the fourth Baker test: “a court’s undertaking of this claim is impossible without expressing lack of the respect due the Executive Branch,” which, in the exercise of the president’s constitutional authority to conduct foreign affairs, had devoted many years to the negotiation of a global resolution of similar claims. The Ninth Circuit’s recent decision in Sarei rejected the application of the political question doctrine, despite the government’s submission of a Statement of Interest (SOI) advocating for dismissal. Sarei combined its analysis of the fourth, fifth, and sixth Baker factors, holding that, aside from the SOI submitted by the Department of State, there would be “little reason” even to consider application of the political question doctrine and “no independent reason” to find that the case infringed on the prerogatives of the executive branch.47 The court found the SOI to be unpersuasive, as discussed in Chapter 16. This recent ruling returns to the dominant trend of rejecting the application of the political question doctrine to ATS cases. Prior to the Ninth Circuit decision in Sarei, a district court dismissed a case raising similar issues, Mujica v. Occidental Petroleum Corp.48 In that case, the plaintiffs brought suit against an oil company and security company alleged to have worked with the Colombian armed forces to raid and bomb the plaintiffs’ village in order to protect the oil company’s operations from insurgent attacks. The district court deferred to the State Department’s claim that proceeding with the litigation would indicate a “lack of respect” for the executive’s preferred approach to the Santo Domingo bombing and relations with Colombia in general, and it dismissed the case on political question grounds. This decision is on appeal to the Ninth Circuit, and is likely to be influenced by Sarei’s analysis of the impact of the executive branch SOI. 45

Id. at 61. Id. at 69 n.13. 47 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *8 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 48 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (appeal pending). 46

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Other courts have also concluded that ATS suits involving foreign affairs can be adjudicated without showing a “lack of respect” for coordinate branches, even where the executive submits a SOI requesting dismissal. In Ungaro-Benages v. Dresdner Bank, A.G.,49 for instance, plaintiffs sued two German banks for stealing the family’s interest in its manufacturing company through the Nazi Regime’s program of “Aryanization.” The court rejected an argument that the litigation would contradict a multiparty agreement governing resolution of claims arising from the Nazi abuses. The court stated: The United States is in full compliance with the Foundation Agreement so long as it files a statement of interest to courts urging respect for the Foundation as the exclusive forum to resolve these claims. The judiciary is not interfering with foreign relations or showing a lack of respect to the executive when it interprets an international agreement and follows its terms.50 In In re Agent Orange Product Liability Litigation, a case brought by Vietnamese nationals against the manufacturers of Agent Orange for the harms done to them and their land during the Vietnam War, the court also declined to find the case non-justiciable on this ground because plaintiffs’ claims were based on international law.51 The court emphasized: The determination that a branch of government has exceeded its constitutional authority does not express lack of respect for it. If the contrary were the case, courts would be unable to declare acts of Congress unconstitutional. . . . The President is no more above the law than is Congress or the courts. Treaties and other aspects of international law apply to, and limit, executive power—even in wartime.52 Factor Five: Adherence to a Political Decision Already Made. The fifth Baker factor requires courts to determine whether there is an “unusual need for unquestioning adherence to a political decision already made.” In Mujica, for example, the court relied on the SOI from the State Department to satisfy this fifth factor as well: “The Executive has indicated that it wishes to pursue non-judicial methods of remedying the wrongs committed in Santo Domingo. Adjudication of this case would constitute disagreement with this prior foreign 49

379 F.3d 1227 (11th Cir. 2004). Id. at 1236. 51 373 F. Supp. 2d 7 (E.D.N.Y. 2005). 52 Id. at 71-72. However, the court ultimately dismissed for failure to state an actionable claim. Id. at 151. 50

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policy decision.”53 In Agent Orange, however, the court declined to apply this factor, concluding that “because the Executive and the Legislature have not made significant political decisions in the area being trod on by the instant parties . . . there is no unusual need for unquestioning adherence to a political decision already made, the fifth Baker factor.”54 Factor Six: Potentiality of Embarrassment, The sixth Baker factor is “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Courts are in agreement that this factor is not called into play in the absence of executive or legislative action. As the court in Agent Orange stated, “the absence of executive and legislative action obviates concern. The judiciary, as well as the executive and the legislature, are each charged with the interpretation and application of international law. That a decision may touch on foreign relations does not decide the question.”55 As a further aspect of the political question doctrine, a defendant may argue, as in Paul v. Avril,56 that logistical and legal problems in obtaining evidence raise a bar to deciding a case. While evidentiary problems are more relevant to the question of forum non conveniens than to whether a case presents a political question, some cases involving torts committed overseas (although none under the ATS or the TVPA) have been dismissed for this reason.57 While the arguments are somewhat case specific, to dismiss a human rights claim at the outset because of alleged difficulties in gathering evidence would require dismissal of most such cases.58 Such a dismissal would also be premature, since it is entirely speculative to anticipate discovery difficulties that might necessitate dismissal. In Sharon v. Time, Inc., for example, the court stressed that decisions regarding dismissal because of the difficulties of obtaining evidence should await the completion of discovery efforts: [W]itholding [of evidence] is routine in all cases touching on the many categories of information deemed confidential by governments, and its significance will depend entirely on the importance to the litigation of 53 Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1194 n.25 (C.D. Cal. 2005) (appeal pending). 54 In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 72 (E.D.N.Y. 2005). 55 Id. 56 812 F. Supp. 207, 212 (S.D. Fla. 1993). 57 See, e.g., Linder v. Calero-Portocarrero, 747 F. Supp. 1452 (S.D. Fla. 1990), rev’d, 963 F.2d 332 (11th Cir. 1992). 58 See Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993).

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what is withheld. . . . A final appraisal of the parties’ ability to obtain information must await the results of this pending effort.59 The fact that discovery overseas may be necessary is not a bar to litigation in federal courts. As discussed in Chapter 19, Section F, several of the Federal Rules of Civil Procedure were designed to facilitate international litigation.60 As the court noted in Washington Post Co. v. U.S. Department of State, “there is a great deal of confidence in the ability of the federal courts to engage in fact finding respecting events transpiring in a foreign land.”61 B. ACT OF STATE DOCTRINE The act of state doctrine, the foreign relations equivalent of the political question doctrine, aims to prevent the judiciary from involving itself in the sovereign affairs of foreign countries. In the classic statement of the doctrine, the Supreme Court wrote: “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”62 Although not mandated by the Constitution, the doctrine is rooted in separation of powers principles, recognizing the limited role of the judicial branch in foreign affairs.63 The act of state defense does not address the jurisdiction of the court and does not have to be considered by the court on its own motion. Unless raised by the defendant, it is waived; if raised, the defendant has the burden of proof64 and must produce evidence of an official sovereign policy.65 The act of state doctrine applies “only . . . when a court must decide—that is, when the outcome of the case turns upon—the effect of official action by a 59

599 F. Supp. 538, 551 (S.D.N.Y. 1984). See, e.g., FED. R. CIV. P. 4(f)(2)(B) (letters rogatory), 28(b) (depositions in foreign countries), 34 (authorizing requests to parties to produce documents whether in the United States or not), 44.1 (determination of foreign law), and 45 (non-party subpoena process). 61 840 F.2d 26, 35-36 n.66 (D.C. Cir. 1988). 62 Underhill v. Hernandez, 168 U.S. 250, 252 (1897). 63 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964). 64 See, e.g., W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990). 65 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 691, 694 (1976). 60

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foreign sovereign.”66 As the Supreme Court stated emphatically in Kirkpatrick, the doctrine does not apply when a dispute between private parties might expose wrongdoing that would embarrass a foreign sovereign.67 In adopting this rule, Kirkpatrick specifically rejected the executive branch’s request that the doctrine be applied case by case to dismiss claims that the administration viewed as interfering with foreign policy.68 The doctrine is a narrow one, precluding the courts “from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory,” in “the absence of a treaty or other unambiguous agreement regarding controlling legal principles.”69 Since all of these criteria must be met for an official’s conduct to constitute an act of state, human rights violations should not fall within the reach of the act of state doctrine. Most important, actions taken by an official “acting outside the scope of his authority as an agent of the state are simply not acts of state.”70 Since governments do not admit that they authorize patently illegal or criminal acts, human rights violations should not be considered “public acts” for purposes of the act of state doctrine.71 Acts constituting “common crimes committed by the Chief of State done in violation of his position and not in pursuance of it . . . are as far from being an act of state as rape.”72 The TVPA Senate Report states explicitly that torture and similar violations of human rights can never be considered the “public acts” required to involve the act of state doctrine: “Since this doctrine applies only to ‘public’ acts, and no state commits torture as a matter of public policy, this doctrine cannot shield former officials from liability 66

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990). 67 Id. 68 Id. at 409. 69 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401, 428 (1964) (emphasis added). 70 Sharon v. Time, Inc., 599 F. Supp. 538, 544 (S.D.N.Y. 1984). 71 See Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1471-72 (9th Cir. 1994); Trajano v. Marcos, 978 F.2d 493, 498 n.10 (9th Cir. 1992); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 (9th Cir. 1992); Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 88990 (2d Cir. 1980). 72 Jimenez v. Aristeguieta, 311 F.2d 547, 558 (5th Cir. 1962). As the Second Circuit noted in Kadic, a case arising in Bosnia-Herzegovina involving allegations of genocide and war crimes, including widespread rape and other torture, “[T]he appellee has not had the temerity to assert in this Court that the acts he allegedly committed are the officially approved policy of a state.” Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995).

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under this legislation.”73 Torture and other human rights violations are always violations of international law and will almost always violate a nation’s own laws; they can never be the “public acts” of a foreign official. The fact that a foreign military, police, or other security force is involved in a human rights violation does not alter this analysis. In In re Estate of Marcos Human Rights Litigation, the Ninth Circuit held that murders “by military intelligence personnel who were acting under direction [of the head of military intelligence], pursuant to martial law declared by” the nation’s president were not acts of state.74 Actions by military officers or police officials are not automatically acts of state.75 Moreover, the act of state doctrine does not apply where the acts are barred by controlling international legal principles. Judicial review only raises foreign policy concerns if the underlying principles are in dispute. As the Supreme Court stated in Banco Nacional de Cuba v. Sabbatino: It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to the circumstances of fact rather than on the sensitive task of 73 S. REP. NO. 102-249, at 8 (1992) (citing Trajano v. Marcos, 878 F.2d 1439) (Senate Report). 74 978 F.2d 493, 496 (9th Cir. 1992). See Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *12 n.19 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (noting that war crimes and other violations of the laws of war violate jus cogens norms and therefore do not constitute official acts); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 702, 713 (9th Cir. 1992) (finding that seizure of property by military officials could not be assumed to be an act of state); Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995); National Coalition Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 352 (C.D. Cal. 1997) (holding that Unocal had not demonstrated widespread abuses committed by members of the Burmese military were acts of state); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987) (stating that pervasive military abuses could not be assumed to have been acts of state without supporting evidence). 75 Galu v. SwissAir: Swiss Air Transport Co., 873 F.2d 650, 654 (2d Cir 1989) (“ad hoc decision of local police officers,” not ordered by sovereign authority of Switzerland, not an official act of the government); Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 889-90 (2d Cir. 1980); Sharon v. Time, Inc., 599 F. Supp. 538, 544 (S.D.N.Y. 1984) (massacre not act of state even if approved by Israeli Defense Minister).

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establishing a principle not inconsistent with the national interest or with international justice.76 Thus, even assuming that torture or similar human rights violations could be deemed the public acts of a recognized foreign sovereign, the act of state doctrine would not preclude U.S. judicial review because such acts violate universally agreed upon legal principles. The Restatement (Third) confirms that the act of state doctrine does not preclude review of an act of a foreign state challenged under principles of international law not in dispute, emphasizing that courts “can decide claims arising out of alleged violations of fundamental human rights.”77 In Sarei v. Rio Tinto, PLC, for example, the Ninth Circuit held that systematic racial discrimination constitutes a violation of a jus cogens norm and therefore could not constitute a sovereign act protected by the act of state doctrine.78 In the cases filed against the Unocal Corporation for its actions in Burma, the district court dismissed property expropriation claims, noting that international law governing a government’s seizure of private property remained unclear.79 The court also dismissed a soldier’s claim for forced labor, holding that U.S. courts could not sit in judgment on a sovereign state’s decision to require that a member of the military participate in public works projects.80 Two additional limitations preclude application of the doctrine in some cases. First, the act of state doctrine is limited to actions a foreign government takes within its own territory.81 Second, acts of state must have been committed 76

376 U.S. 398, 428 (1964). RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW 443 cmts. b, c (1987). 77

OF THE

UNITED STATES §

78

Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *11 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (citing Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (“International law does not recognize an act that violates jus cogens as a sovereign act.”)). Sarei also notes that the act of state doctrine has been interpreted to apply only to legitimate acts of warfare. Id. at *12 n.19. 79 Doe v. Unocal, 963 F. Supp. 880, 899 (C.D. Cal. 1997). See discussion of property claims in Chapter 7, Section F.2. 80 Roe v. Unocal Corp., 70 F. Supp. 2d 1073 (C.D. Cal. 1999) (holding that a commanding officer’s order that a soldier dig a drainage trench was an official order that satisfied the requirements of the act of state doctrine). 81 See Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (“the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”); Risk v. Norway, 707 F. Supp. 1159, 1168 (N.D. Cal. 1989) (rejecting doctrine for actions taken by Norwegian officials in the United States). See also

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by an official of a government recognized by the United States at the time of the lawsuit. If the dictator has been deposed, if the government that was responsible for the acts is no longer in existence, or if the government is not recognized by the United States, the act of state doctrine does not apply.82 In Sarei, for instance, the Ninth Circuit reversed and remanded the district court’s act of state dismissal of claimed violations of the law of the sea, noting that it was unclear whether the “government which perpetrated the challenged act is [still] in existence.”83 The act of state analysis in Doe v. Liu Qi84 appears inconsistent with both Ninth and Second Circuit precedents. In Liu Qi, practitioners of Falun Gong who had been detained, tortured, and otherwise abused by Chinese government officials sued the mayor of Beijing and a deputy provincial governor. The court found that the act of state doctrine applies to acts that are covertly authorized, and therefore “ratified,” by the government, even if against domestic law.85 In the two cases cited in support of this rule, however, the Second Circuit noted that the foreign government had not ratified the challenged acts but at no point implied that covert approval could transform illegal activities into public acts for the purposes of the act of state doctrine.86 Moreover, the facts of the Falun Gong cases do not support the court’s finding of ratification: The government had “categorically denie[d]” that “the alleged violations of international human RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 433 (1) (1987) (“courts in the United States will generally refrain from sitting in judgment on other acts of a governmental character done by a foreign state within its own territory and applicable there”). 82 Bigio v. Coca-Cola, 239 F.3d 440, 444 (2d Cir. 2000); W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400 (1990); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1360 (9th Cir. 1988) (en banc); Abiola v. Abubakar, Civ. No. 02-6093, 2005 WL 3050607, at *1-3 (N.D. Ill. Nov. 8, 2005); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at * 28 (S.D.N.Y. Feb. 28, 2002). 83 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *12 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)). 84 349 F. Supp. 2d 1258 (N.D. Cal. 2004). 85 Id. at 1293. 86 Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995); Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876, 889 (2d Cir. 1980).

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rights” had even occurred, while stating that “any such violations would be contrary to Chinese law.”87 Having decided that the act of state doctrine applied in part, however, the court in Liu Qi declined to dismiss the case completely, despite a U.S. government submission claiming that the litigation would impinge upon foreign affairs. The court engaged in a lengthy analysis of the Sabbatino factors and held that, although an award of damages was barred by the act of state doctrine, a declaratory judgment was permissible.88 The court issued a declaratory judgment finding that the acts violated international law. Since the Doe v. Liu Qi decision, two courts have gone even further, dismissing human rights claims under the act of state doctrine with little analysis.89 Two other cases rejected the doctrine, holding that the international consensus against the violations and the fact that the acts were not committed in the public interest outweighed any impact on foreign relations.90 C. INTERNATIONAL COMITY Principles of international comity are implicated when there is a “true” conflict between U.S. and foreign law governing the conduct at issue in a case.91 Human rights claims rarely present true conflicts, because they allege violations of universally recognized human rights norms, and it is extremely rare for a state 87

Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1306 (N.D. Cal. 2004). Id. at 1295-1306. 89 Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1032-33 (W.D. Wash. 2005) (appeal pending) (concluding, without discussing the act of state requirements or the Sabbatino balancing factors, that adjudication of plaintiffs’ claims against corporation for supplying equipment to the Israeli military would “certainly invade the foreign policy prerogatives of the political branches of government”); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 25 (D.D.C. 2005) (holding that assessing whether Exxon was liable for genocide and crimes against humanity would require adjudication of “whether the Indonesian military was engaged in a plan allegedly to eliminate segments of the population,” which “would be an impermissible intrusion in Indonesia’s internal affairs” and would “require[] the court to evaluate the policy or practice of the foreign state”) (citing Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1307-11 (N.D. Cal. 2004)). 90 Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1188-91 (C.D. Cal. 2005) (appeal pending); Owens v. Republic of Sudan, 374 F. Supp. 2d 1, 26-28 (D.D.C. 2005). 91 In re Simon, 153 F.3d 991, 999 (9th Cir. 1998) (application of international comity is “limited to cases in which ‘there is in fact a true conflict between domestic and foreign law’ ”). 88

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to violate these types of norms through formal executive policies or legislative acts. Nevertheless, defendants frequently argue that ATS cases should be dismissed on this basis. International comity is one of the more confusing doctrines evoked in cases touching upon the interests of foreign states. As explained by Professor Michael Ramsey, the confusion results from grouping together several distinct doctrines under the label “comity,” without distinguishing the standard applicable to a particular case.92 The classic statement of the doctrine, often cited by modern courts, captures several doctrines without distinguishing among them: The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call “the comity of nations.” . . . “Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.93 In most modern cases discussing international comity, the court confronts an alleged conflict between U.S. law and foreign law and must decide whether to defer to the rules of the foreign country. In Hartford Fire Insurance Co. v. California, the Supreme Court sharply limited the types of “conflicts” that can lead to international comity dismissals.94 The case involved allegations that London-based reinsurance companies had 92

Michael D. Ramsey, Escaping “International Comity,” 83 IOWA L. REV. 893, 897 (1998) (stating that “comity” is used to refer to at least four separate doctrines: (1) recognition of foreign judgments; (2) interpretation of foreign law; (3) limits on the extraterritorial reach of U.S. law; and (4) enforcement of foreign law). 93 Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). As this quoted language makes clear, the decision to dismiss a case on international comity grounds lies within the discretion of the court. See also Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir. 2006) (“application of this doctrine ordinarily lies within the discretion of the district court”); Bigio v. Coca-Cola Co., 239 F.3d 440, 454 (2d Cir. 2001) (“When a court dismisses a complaint in favor of a foreign forum pursuant to the doctrine of international comity, it declines to exercise jurisdiction it admittedly has.”). 94 509 U.S. 764 (1993).

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engaged in illegal conspiracies to affect the market for insurance in the United States, in violation of the Sherman Act. The London companies argued that their actions were completely legal under the British regulatory scheme. The Court refused to dismiss the case out of comity to the British legal system, because it found no conflict between the two legal regimes: No conflict exists, for these purposes, “where a person subject to regulation by two states can comply with the laws of both.” Since the London reinsurers do not argue that British law requires them to act in some fashion prohibited by the law of the United States, or claim that their compliance with the laws of both countries is otherwise impossible, we see no conflict with British law.95 Thus a true conflict requires that compliance with both sets of law be impossible. Applying the Hartford analysis, lower courts have rejected efforts to dismiss human rights claims in the absence of such a true conflict.96 In Bodner v. Banque Paribas, for example, plaintiffs sought damages from banks that had allegedly converted assets deposited by Jewish victims of the Holocaust in France.97 In declining to dismiss the case on international comity grounds, the court found no conflict between the plaintiffs’ claims and the policies of a foreign government: “Absent any specific legislative or judicial statement of policy of a foreign state or court, as is the case here, international comity is not a relevant inquiry.” The court distinguished the facts from those in Iwanowa v. Ford Motor Co., where the German government had specifically barred foreign citizens from asserting direct claims against private companies.98 The Iwanowa court found that it was bound to act with “respect for the acts of our fellow sovereign nations.”99 By comparison, in Bodner, the defendants could point to no similar conflict with a French government rule of law. 95

Id. at 799 (citation omitted). The existence of a true conflict is the “threshold question in comity analysis.” Societe Nationale Indusrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522, 555 (1987) (Blackmun, J., concurring in part, dissenting in part: “As in the choice-of-law analysis, which from the very beginning has been linked to international comity, the threshold question in a comity analysis is whether there is in fact a true conflict between domestic and foreign law.”). 97 114 F. Supp. 2d 117 (E.D.N.Y. 2000). 98 67 F. Supp. 2d 424 (D.N.J. 1999). 99 Id. at 489 (quoting Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994)). 96

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If a true conflict has been established, the court must consider a number of additional factors in determining whether dismissal on comity grounds is appropriate. The circuit courts and the Restatement (Third) have developed slightly different sets of criteria, each of which looks at the degree of conflict with foreign law or policy; the connections of the parties and their activities to the United States and to the foreign state; and the importance of the regulation of the conduct at issue to the United States and the foreign state.100 In Sarei v. Rio Tinto, PLC, residents of the island of Bougainville in Papua New Guinea alleged that the defendant’s mining operations destroyed the island’s environment, harmed the health of its people, and incited a ten-year civil war, and that the corporate defendants were guilty of war crimes and crimes against humanity.101 Defendants argued that the case should be dismissed on international comity grounds because Papua New Guinea had enacted a compensation act that “prohibit[ed] the taking or pursuing in foreign courts of legal proceedings in relation to compensation claims arising from mining projects and petroleum projects in Papua New Guinea.”102 The district court found a “true conflict” between the statute and the litigation of the environmental and racial discrimination claims in U.S. courts, and it concluded that the various relevant factors pointed towards dismissal on the grounds of comity.103 The court held, however, that the war crimes and crimes against humanity claims did not fall within the scope of the Compensation Act and that the gravity of those allegations argued in favor of retention of jurisdiction. On appeal, the Ninth Circuit upheld the refusal to dismiss the war crimes and crimes against humanity claims on the basis of comity,104 and it remanded for reconsideration of the comity dismissal of the other claims, because of the district court’s erroneous reliance on the State Department Statement of Interest.105 100

Compare Timberland Lumber Co. v. Bank of Am. Nat’l Trust and Sav. Ass’n, 749 F.2d 1378 (9th Cir. 1984); O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 451 (2d Cir. 1987), with RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 403 (1987). 101

221 F. Supp. 2d 1116 (C.D. Cal. 2002).

102

Id. at 1201.

103

Id. at 1204.

104

The court noted that the defendant had not appealed the district court denial of the motion to dismiss the war crimes and crimes against humanity claims on comity grounds, and it noted that the district court denial of that motion was within its discretion. Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *14 n.24 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 105 In an earlier section of its decision, the Ninth Circuit had questioned the persuasive value of the executive branch Statement of Interest (SOI) upon which the district court

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In Jota v. Texaco, a case in which plaintiffs sought damages for environmental destruction in Ecuador, the Second Circuit stated the comity principle as one by which U.S. courts “ ‘ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries, allowing those acts and proceedings to have extraterritorial effect in the United States.’”106 This doctrine, the court said, “ ‘is best understood as a guide where the issues to be resolved are entangled in international relations.’ ”107 The court reversed and remanded because the dismissal based on comity should have been conditioned on the defendant’s consent to jurisdiction in Ecuador; however, it declined to review the substantive findings about international comity. The Second Circuit, in Bigio v. Coca-Cola, Co., reversed a lower court dismissal on comity grounds without clearly explaining the test that it had applied.108 The case involved land and factories confiscated by the Egyptian government in 1962 because the owners were Jewish.109 The decision described international comity as “a discretionary act of deference by a national court to decline to exercise jurisdiction in a case properly adjudicated in a foreign state, the so-called comity among courts.”110 The Second Circuit reversed the lower court’s dismissal, holding that “the only issue of international comity properly raised here is whether adjudication of this case by a United States court would offend ‘amicable working relationships’ with Egypt.”111 This analysis of comity appears to be a variant of the political question doctrine. relied in reaching its comity decision. As a result, the Ninth Circuit remanded the question of whether international comity required dismissal of the racial discrimination and environmental harm claims, instructing the district court to reconsider the impact of the SOI. Id. at *14. 106

157 F.3d 153, 159-60 (2d Cir. 1998) (quoting Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 854 (2d Cir. 1997)). 107

Id. (quoting In re Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir. 1996)). 108

Bigio v. Coca-Cola, Co., 448 F.3d 176 (2d Cir. 2006). Plaintiffs claimed that their land and factories in Egypt were nationalized by the Egyptian government in 1962 because plaintiffs were Jewish. The Egyptian government then leased the property to a government-owned bottling company. When Coca-Cola invested in the bottling company several years later, plaintiffs demanded compensation from Coca-Cola for their property loss. 109

110 Id. at 178 (quoting In re Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir. 1996)). 111 Id. The circuit court held that the district court erred in applying the comity standard relevant to deciding whether a court should apply U.S. law extraterritorially. Id.

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In Ungaro-Benages v. Dresdner Bank AG, the court distinguished between the retrospective and prospective application of the doctrine of international comity112 : When applied retrospectively, federal courts evaluate three factors: (1) whether the foreign court was competent and used “proceedings consistent with civilized jurisprudence,” (2) whether the judgment was rendered by fraud, and (3) whether the foreign judgment was prejudicial because it violated American public policy notions of what is decent and just.113 In contrast, the court stated that “[a]pplied prospectively, federal courts evaluate several factors, including the strength of the United States’ interest in using a foreign forum, the strength of the foreign governments’ interests, and the adequacy of the alternative forum.”114 The courts dismissed expropriation claims because the executive branch had entered into agreements creating alternative dispute mechanisms that were dependent upon assurances that no further litigation would proceed. Litigants should be aware of efforts to raise concerns based on political repercussions and foreign affairs by means of this loosely defined doctrine. As with claims of case-specific deference discussed in the next section, it may be useful to argue that so-called comity claims are more properly addressed through the political question doctrine or the act of state doctrine, both of which have more clearly defined standards. D. CASE-SPECIFIC DEFERENCE The Supreme Court in Sosa v. Alvarez-Machain made a reference to “case-specific deference to the political branches,” a previously unknown doctrine upon which several defendants in ATS litigation have seized.115 The Court in a footnote suggested that “case-specific deference” to the executive branch might be appropriate in some cases, using as an example a series of cases seeking damages for harms cased by multinational corporations during the apartheid era: 112

379 F.3d 1227, 1238 (11th Cir. 2004) (citations omitted). Id. 114 Id. (citing Jota v. Texaco, 157 F.3d 153, 160 (2d Cir. 1998) (holding that courts should consider the adequacy of the foreign forum and the strength of the foreign government’s interests)). 115 542 U.S. 692, 733 n.21 (2004). 113

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Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in federal district court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. The Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which “deliberately avoided a ‘victors’ justice’ approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.” The United States has agreed. In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.116 The Court then cited Republic of Austria v. Altmann, which stated that, in some circumstances, the State Department’s opinion on the implications of exercising jurisdiction over a particular case “might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.”117 No court, including the Court in Sosa, has found that case-specific deference refers to a separate doctrine. The comment is best understood as a reference to the application of the preexisting doctrines discussed in this chapter. Courts that have analyzed “case-specific deference” have viewed it as a gloss on either the political question doctrine or the act of state doctrine. For example, the court in Joo v. Japan interpreted “case-specific deference” as a lens through which to apply the political question doctrine.118 In Doe v. Liu Qi, the court reviewed the Supreme Court language and concluded, “The act of state doctrine embodies these same concerns, and thus consideration may properly be given to it in the cases at bar.”119 A recent law review comment affirmed this approach, rejecting the concept of “a new doctrine of deference” and concluding that the Supreme Court’s comments “are better understood as an endorsement of existing deferential doctrines in the realm of foreign affairs”: In the Court’s long struggle to define its role vis-a-vis the political branches in foreign affairs, it has developed many prudential doctrines 116 117 118 119

Id. 541 U.S. 677, 702 (2004). 413 F.3d 45, 49 (D.C. Cir. 2005). Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1291 (N.D. Cal. 2004).

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to guide its decisions . . . —the political question doctrine, international comity, and the act-of-state doctrine, to name a few. To read the Court’s recent references to deference in foreign affairs as a new doctrine would ignore this long tradition and create unnecessary redundancy. The Court’s comments are better understood as confirming that existing discretionary doctrines should be applied vigilantly to protect the Executive’s constitutional foreign affairs prerogative.120 E. FOREIGN AFFAIRS DOCTRINE Defendants in some human rights cases have moved to dismiss claims on the basis of the “foreign affairs doctrine.” That imprecise label has been applied to three separate concepts: (1) a choice of law rule indicating that federal law should govern issues implicating foreign relations121 ; (2) a disputed jurisdictional rule, applied in a handful of lower court cases, holding that federal courts have jurisdiction over claims implicating foreign relations,122 discussed in 120

Recent Cases, 119 HARV. L. REV. 2292, 2297 (2006) (footnote omitted). “This interpretation finds significant support among the lower courts, which have consistently sought to apply Altmann-Sosa deference in conjunction with existing doctrines.” Id. at 2297 n.38. Moreover, it is significant that in both Altmann and Sosa the Court’s actual rulings could be understood as impinging upon executive foreign affairs discretion. . . . Because it was issuing decisions that apparently infringed upon executive discretion, the Court referenced case-specific deference in order to emphasize that its conclusions did not obliterate or even constrain preexisting doctrines that acknowledge executive supremacy in foreign affairs. Id. See also The Supreme Court, 2003 Term—Leading Cases, 118 HARV. L. REV. 248, 475 (2004) (describing the suggestion of case-by-case deference as “wholly unnecessary” in light of the availability of the political question and act of state doctrines). 121 See, e.g., Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232-33 (11th Cir. 2004) (under foreign affairs doctrine, federal law governs claims, not state law). 122 See, e.g., In re World War II Era Japanese Forced Labor Litig., 114 F. Supp. 2d 939, 942-44 (N.D. Cal. 2000) (holding that claims that implicate the federal common law of foreign relations trigger federal jurisdiction); Torres v. Southern Peru Copper Corp., 113 F.3d 540, 543 n.8 (5th Cir. 1997) (finding federal subject matter jurisdiction over disputes between private parties that implicate the “vital economic and sovereign interests” of the nation where the parties’ dispute arose); Republic of Philippines v. Marcos, 806 F.2d 344, 352 (2d Cir. 1986) (if plaintiff’s claims necessarily require determinations that will directly and significantly affect U.S. foreign relations, state law claims can be removed to federal court).

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Chapter 6, Section A; and (3) a doctrine holding that state laws that interfere with federal foreign affairs are preempted, which is the subject of this section. In American Insurance Association v. Garamendi, the Supreme Court described the foreign affairs doctrine as a doctrine of preemption applicable where there is a clear conflict between a federal policy adopted in “[t]he exercise of the federal executive authority” and a policy adopted by a state.123 Garamendi held that a California statute was preempted because it conflicted with the federal government’s powers to regulate foreign affairs.124 When the state action is within the “an area of ‘traditional competence’ for state regulation but in a way that affects foreign relations,” a conflict is required to invoke the doctrine.125 However, where a state “take[s] a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility,” the degree of conflict with federal policy is immaterial, since “the Constitution entrusts foreign policy exclusively to the National Government.”126 Under Garamendi, foreign affairs conflict preemption requires that the court identify: (1) a federal action that is “fit to preempt state law,”127 and (2) a “clear conflict” between the “express federal policy” and the state action.128 If any doubt remains about the “clarity of the conflict,” the court should examine the strength of the state’s interests.129 Specifically, Garamendi held that California law undercut the president’s executive agreements with foreign 123

539 U.S. 396, 421 (2003). Id at 396. 125 Id. at 420 n.11. 126 Id. 127 Id. at 416. Garamendi involved a California statute that concerned insurance claims by Holocaust victims and a federal executive agreement on the handling of such claims. Id. In 1999, California enacted a statute requiring insurance companies to disclose policies issued in Europe between 1920 and 1945. At the same time, the federal government was engaged in negotiations that led to a comprehensive agreement with Germany to settle Nazi-era insurance claims. See also Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (holding unconstitutional state law imposing sanctions on Burma because it conflicted with federal statute imposing more limited sanctions); Deutsch v. Turner Corp., 342 F.3d 692 (9th Cir. 2003) (holding unconstitutional a state statute providing that World War II slave laborers could bring action to recover compensation). 128 American Ins. Ass’n v. Garamendi, 539 U.S. 396, 399 (2003). In Garamendi, such a conflict was present because the California statute furthered an alternative method of resolution for Holocaust-era claims than had been adopted in the executive agreement. 129 Id. 124

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nations.130 The Court stated that “[t]he exercise of the federal executive authority means that state law must give way where . . . there is evidence of clear conflict between the policies adopted by the two.”131 Only one court has dismissed a state law human rights claim under the foreign affairs doctrine. In Mujica v. Occidental Petroleum, Corp., plaintiffs sued for injuries arising out of the corporate defendant’s involvement in a bombing in Colombia, raising state law claims as well as ATS and TVPA claims.132 The district court dismissed the state claims, holding that the federal foreign affairs power preempted state law claims for international law violations. The court found that the state interest—held to be weak because the injuries took place in a foreign country and plaintiffs had never resided in the state—was outweighed by the federal interest in regulating foreign affairs. The court relied on an executive branch statement of interest arguing that adjudication of the claims would interfere with U.S. foreign policy. The Mujica court, however, never identified a conflict between a federal rule and the state law. Instead, it applied the doctrine as if it required dismissal of state law claims wherever those claims touch upon foreign affairs—a rule that clearly is not sustainable. Mujica was rejected in Doe v. Exxon Mobil Corp.,133 which held that there was no showing that adjudication of state law tort claims would interfere with federal foreign affairs powers. The court determined that the foreign affairs doctrine did not apply because “no state government ha[d] passed any statute in conflict with U.S. foreign policy.”134 The court noted that Mujica had misapplied the Supreme Court decision in Garamendi. The Exxon Mobil court recognized that the Garamendi analysis was not applicable because “there [were] no encroachments by any state on to the federal field of foreign affairs.”135 The court then concluded that the state law claims could be asserted against the corporation for involvement in human rights abuses outside of the United States, 130

Id. at 423-24. In characterizing the different approaches used, the Court stated that “[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves.” Id. at 427. 131 Id. at 421. 132 381 F. Supp. 2d 1164 (C.D. Cal. 2005). The erroneous application of the foreign affairs doctrine is one of the issues presented in the appeal, which was argued in April 2007. 133 Civ. No. 01-1357, 2006 WL 516744, at * 2-3 (D.D.C. Mar. 2, 2006). 134 Id. at *3. 135 Id.

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because there was no evidence that the state law claims conflicted with the federal government’s foreign affairs powers.136 Defendants are likely to continue to attempt to push the boundaries of the foreign affairs doctrine beyond the narrow circumstances presented in Garamendi. It is unlikely, however, that the courts will find that state tort law should be displaced solely on the basis of an executive branch Statement of Interest (SOI), in the absence of some higher level executive action. 136

Id.

CHAPTER 14 IMMUNITIES

Foreign governments, public international organizations, and many of the officials who work for them often claim that they are immune from suit in U.S. courts. The immunities of foreign governments are dealt with in Chapter 5, as part of the discussion of the Foreign Sovereign Immunities Act (FSIA), the only means to assert jurisdiction over foreign states.1 This chapter addresses the immunities of government officials and representatives as well as immunities applicable to public international organizations and their employees. Determining exactly which immunities apply to a particular defendant requires analyzing several interrelated immunity provisions.2 The first issue considered in this chapter is to what extent, if at all, the FSIA applies to officials of foreign states. The chapter then addresses head-of-state immunity, a common law concept developed in the case law that protects current heads of state; diplomatic immunity, defined by a series of international agreements and statutes; the immunity afforded to government representatives engaged in official missions; the immunities of officials of public international organizations; and waivers of immunity. A. THE FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA) AND INDIVIDUAL OFFICIALS A key issue that must be considered in suing individual officials, particularly under the Alien Tort Statute (ATS),3 is whether the FSIA is applicable. This should not be a concern for suits against individual officials under the Torture Victim Protection Act (TVPA), which permits suits only 1

28 U.S.C. §§ 1330, 1602-11. The interrelationship among these immunities has been described as follows: “[A]s chief representatives and often the governmental executives of their states, heads of state may need a broader and more constant immunity than their diplomatic agents, but one less comprehensive than the immunity of the states they represent.” Jerrold L. Mallory, Note, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 COLUM. L. REV. 169, 170 n.10 (1986). 3 28 U.S.C. § 1350. 2

365

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against individuals, not states.4 The TVPA and its legislative history leave no ambiguity on this point.5 The legislative history of the TVPA confirms that the FSIA should not apply, stating that “sovereign immunity would not generally be an available defense” to a TVPA lawsuit.6 Despite this history, a district court has held that TVPA cases must fit within a FSIA exception.7 In addition, the U.S. government has claimed that when the official’s conduct is performed on the state’s behalf, that official can assert an immunity defense, although not under the FSIA: the immunity asserted, according to the government, would be a common law immunity that protects officials even in the performance of unlawful acts, if such acts were performed on behalf of the state.8 To date, no court has agreed with the government that such common law immunity is 4 28 U.S.C. § 1350 (note), § 2(a) (establishing liability of “an individual” for torture and extrajudicial execution). 5 “Only ‘individuals,’ not foreign states, can be sued under the bill.” H.R. REP. NO. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 87. The Senate Report is even more direct: “The legislation uses the term ‘individual’ to make crystal clear that foreign states or their entities cannot be sued under this bill under any circumstances: only individuals may be sued.” S. REP. NO. 102-249, at 7 (1992). Both reports are reprinted in the statutory appendix. 6 H.R. REP. NO. 102-367, at 5, reprinted in 1992 U.S.C.C.A.N. at 88. The Senate Report explains this point at some length, pointing out that to avoid liability under the FSIA, “a former official would have to prove an agency relationship to a state, which would require that the state ‘admit some knowledge or authorization of relevant acts.’ ” S. REP. NO. 102-249, at 8 (quoting 28 U.S.C. Section 1603(b)). Since all states are “officially opposed to torture and extrajudicial killing,” the Senate Report concludes that this is unlikely to occur. Id. Note that this reasoning applies equally to suits under the ATS. Both reports note that heads of state and diplomats are entitled to head-of-state and diplomatic immunity in TVPA suits. H.R. REP. NO. 102-367, at 5, reprinted in 1992 U.S.C.C.A.N. at 88; S. REP. NO. 102-249, at 7-8. (The Senate Report also states that “former officials” should not have immunity. S. REP. NO. 102-249, at 8.) By implication, present officials who are neither heads of state nor visiting the United States as diplomats are not entitled to immunity. 7 Belhas v. Ya’Alon, 466 F. Supp. 2d 127, 131-32 (D.D.C. 2006). 8 In Matar v. Dichter, the government filed a Statement of Interest in which it claimed that common law immunity could be asserted by defendants regarding both TVPA claims and ATS claims. Statement of Interest, Matar v. Dichter, at 35-51, Civ. No. 05-10270 (S.D.N.Y. May 2, 2007), available at www.ccr-ny.org/humanrightsbook. In May 2007, the district court rejected this argument, holding that individual government employees are eligible for FSIA immunity when acting pursuant to their official capacity.

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available in a TVPA case. The government has made a similar common law immunity claim regarding the ATS, which is discussed below.9 No court has upheld such a claim. With regard to ATS cases, the plain language of the FSIA and its legislative history make clear that it should have no applicability in analyzing the immunities of individual officials. The FSIA states that immunity is to be given only to a foreign state, its political subdivisions, or “an agency or instrumentality of a foreign state.”10 The terminology employed to define “an agency or instrumentality of a foreign state” demonstrates that the FSIA was not intended to apply to natural persons.11 In keeping with this view of the FSIA, the Restatement (Third)12 eliminated individuals from the list of parties entitled to sovereign immunity. The government has accepted that the FSIA does not apply to individuals.13 Nevertheless, a number of circuits and district courts have found that jurisdiction over individual defendants should be analyzed under the FSIA. Applying this analysis to claims of human rights violations, these courts have concluded that the FSIA does not apply because such acts are not within the official authority of the individual. Other courts have held that the FSIA does not apply to individuals at all. In the absence of a Supreme Court resolution of the conflict, the law in this area is circuit-specific and evolving. The law in the circuit in which litigation is planned, therefore, should be examined prior to filing a lawsuit. As of this writing and as discussed below, five circuit courts have explicitly applied the FSIA to individual foreign officials,14 one may have done so 9

Id. at 37-47. 28 U.S.C. § 1603(a). 11 28 U.S.C. § 1603(b). 12 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 451 et seq. (1987). 13 See generally Statement of Interest, Matar v. Dichter, Civ. No. 05-10270 (S.D.N.Y. May 2, 2007), available at www.ccr-ny.org/humanrightsbook. Instead, it claims that common law immunity protects individual officials for official acts. Id. See also Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1101 (9th Cir. 1990). 14 See Keller v. Central Bank of Nigeria, 277 F.3d 811, 815-16 (6th Cir. 2002); Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999); Velasco v. Government of Indonesia, 370 F.3d 392, 398-99 (4th Cir. 1994); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1103 (9th Cir. 1990); Jungquist v. Sheikh Sultan bin Khalifa al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997). 10

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implicitly,15 and district courts in two have done so as well.16 Only the Seventh Circuit has held explicitly that the FSIA does not apply to individuals,17 while the Second Circuit has indicated so in dicta.18 Considering the clear language of the FSIA, its application to individuals by so many circuit courts is surprising. In litigating cases against individual officials, it is important to argue first, that the FSIA does not apply; second, that even if it does, the defendant acted outside the scope of his authority; and third, that the defendant’s conduct was contrary to law, whether under the law of the foreign state or fundamental norms of international law. In any of these scenarios, the FSIA does not protect the individual.19 Ultimately, the question of the FSIA’s applicability to individuals will need to be settled by the Supreme Court. The earliest circuit court case to reach the conclusion that officials were covered by the FSIA was the Ninth Circuit’s decision in Chuidian v. Philippine 15

In Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 3 (1st Cir. 2002), the First Circuit upheld the district court’s application of the FSIA to a consul for failure to pay rent and vacate the premises because such acts were within the scope of the consul’s official authority. 16 Trujillo v. Banco Central del Ecuador, 17 F. Supp. 2d 1340, 1343-44 (S.D. Fla. 1998); Supra Med. Corp. v. McGonigle, 955 F. Supp. 374, 378-79 (E.D. Pa.1997). 17 Wei Ye v. Jiang Zemin, 383 F.3d 620, 625 (7th Cir. 2004). 18 Tachiona v. United States, 386 F.3d 205, 220-21 (2d Cir. 2004). A district court held otherwise. In re Terrorist Attacks of September 11, 2001, 349 F. Supp. 2d 765, 787-92 (S.D.N.Y. 2005). 19 Two briefs filed in 2006 fully develop the argument that the FSIA does not apply to individuals and that, even if it did, it would not immunize individuals who act contrary to lawful authority, whether that of the foreign state or of fundamental norms of human rights. Memorandum of Points and Authorities in Support of Plaintiffs’ Opposition to Defendant’s Motion to Dismiss Complaint, Belhas v. Ya’alon, 466 F. Supp. 2d 127 (D.D.C. May 15, 2006) (Civ. No. 1:05-2167); Memorandum of Law in Support of Plaintiffs’ Opposition to Motion to Dismiss, Matar v. Dichter, Civ. No. 05-10270 (S.D.N.Y. May 2, 2007). Both briefs are available at www.ccr-ny.org/humanrightsbook. However, in an opinion in Belhas, the court found irrelevant the argument that the defendant violated Israeli and international law. Belhas v. Ya’alon, 466 F. Supp. 2d 127, 132 (D.D.C. 2006). It held that jurisdiction depended upon finding an exception under the FSIA and that the FSIA did not distinguish between individual defendants and states. Id. at 132-33. In Belhas, the Israeli government submitted a letter stating that the actions of the defendant were sovereign acts of the State of Israel and approved by the government of Israel. See id. at 132.

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National Bank.20 The court reached the unexpected result that the FSIA applied to individuals acting within the scope of their authority. The court granted immunity to a Philippine official who had carried out a commercial act—dishonoring a letter of credit—upon instructions of the Philippine government.21 Chuidian did not involve gross violations of human rights, and the court limited the FSIA’s application to acts by officials within the scope of their authority that are consistent with their legal mandate. Thus, where officials engage in acts beyond the scope of their authority, the FSIA would not apply: “[W]here the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do.”22 The Ninth Circuit revisited the question of whether the FSIA protects individuals in both Trajano v. Marcos23 and Hilao v. Estate of Marcos.24 In Trajano, the circuit analyzed an individual’s liability for gross human rights violations under the FSIA, stating that “the FSIA trumps the Alien Tort Statute when a foreign state or, in this circuit, an individual acting in her official capacity, is sued.”25 The Ninth Circuit read Chuidian as immunizing an official unless she was acting “beyond the scope of her authority (for example, doing something the sovereign has not empowered the official to do).”26 In Hilao, the defendant, the estate of Ferdinand Marcos, argued that the abuses at issue in the case were carried out under Marcos’ official authority and thus immunized. The court rejected this argument, finding that “acts of torture, execution, and 20

912 F.2d 1095, 1103 (9th Cir. 1990). Chuidian cites a handful of district court cases applying the FSIA to individuals, where the immunized officials were acting both under the color of official authority and within their official capacity. Id. 22 Id. at 1106 (alteration in original) (internal quotation marks omitted). 23 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993). 24 In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995); see discussion of Ninth Circuit rulings on sovereign immunity for individuals in Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN’S L. REV. 491, 503-17 (1993). 25 Trajano v. Marcos, 978 F.2d 493, 497 (9th Cir. 1992). 26 Id. The court found that the defendant was not immune because she admitted that she was acting on her own authority, not on the authority of the Philippine government. Id. at 498. 21

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disappearance were clearly acts outside of his authority as President.”27 As the “acts were not taken within any official mandate and were therefore not the acts of an agency or instrumentality of a foreign state within the meaning of [the] FSIA . . . [n]o exception to [the] FSIA thus need be demonstrated.”28 Even under the Ninth Circuit’s view that individual officials are covered by the FSIA, there should be little difficulty in persuading the court that gross human rights violators are not entitled to immunity, even if they are former heads of state.29 In Hilao, the court concluded that “the illegal acts of a dictator are not ‘official acts’ unreviewable by federal courts.”30 It can be argued that torture, summary execution, and other gross violations of human rights can never be within an official’s scope of authority. Such acts are illegal in every foreign state, violate international law, and will rarely, if ever, be explicitly authorized by the foreign state.31 The Hilao court also rejected defendant Marcos’ argument that acts outside the scope of his official authority (and thus not immunized by the FSIA) did not violate international law because such acts were not committed under “color of 27

In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1472 (9th Cir. 1994). 28 Id. (citation omitted). In Xuncax v. Gramajo, 886 F. Supp. 162, 175-76 (D. Mass. 1995), the court reached the same result. While questioning the result reached in Chuidian, the court found it unnecessary to decide the issue, joining the Ninth Circuit in concluding that any immunity would “be unavailable in suits against an official arising from acts that were beyond the scope of the official’s authority.” Id. at 175. 29 A current head of state recognized by the U.S. government may be absolutely protected by head-of-state immunity, no matter the crime alleged. See discussion in Section B; see also Lafontant v. Aristide, 844 F. Supp. 128, 135-37 (E.D.N.Y. 1994) (finding that the FSIA has no application to a head of state). 30 In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1471 (9th Cir. 1994). The court relied on three “act of state” cases: Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989) (unpublished table decision); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1360-61 (9th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989) (finding that a court can distinguish legal acts of a deposed ruler from acts for personal profit that lack a basis in law); Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963) (holding that murder and financial crimes committed by a dictator are no more immune than his act of rape). 31 However, the question has arisen in at least one case. See Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1283-84 (N.D. Cal. 2004). See discussion infra notes 50-52 and accompanying text.

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law.”32 Citing Fila´rtiga v. Pen˜a-Irala, the court held that “[a]n official acting under color of authority, but not within an official mandate, can violate international law and not be entitled to immunity under [the] FSIA.”33 Four other circuits have followed the Ninth Circuit, holding that the FSIA applies to foreign officials; in addition, the First Circuit has done so implicitly, affirming a district court ruling without discussion of the issue.34 Each has also followed the Chuidian holding that FSIA immunity for an individual government official only applies to actions taken in an official capacity. The Fourth Circuit, for example, stated, “[a]lthough the [FSIA] is silent on the subject, courts have construed foreign sovereign immunity to extend to an individual acting in his official capacity on behalf of a foreign state.”35 The court noted that “[t]he FSIA . . . does not immunize an official who acts beyond the scope of his authority.”36 Similarly, the Fifth Circuit held that the FSIA immunizes “individuals acting within their official capacity as officers of corporations considered foreign sovereigns.”37 The D.C. Circuit in Jungquist v. Sheikh Sultan 32

See Chapter 10, Section B.1. In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1472 n.8 (9th Cir. 1994) (citing Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 890 (2d Cir. 1980)); cf. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C. Cir. 1985) (distinguishing foreign sovereign immunity from domestic sovereign immunity in finding immunity where suit sought to prevent actions of U.S. officials). 34 Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 3 (1st Cir. 2002) (implicitly upholding application of the FSIA to a consul for acts within the scope of the consul’s official authority). 35 Velasco v. Governmentt of Indonesia, 370 F.3d 392, 398 (4th Cir. 1994). 36 Id. at 399. 37 Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999); see also Keller v. Central Bank of Nigeria, 277 F.3d 811, 813, 815 (6th Cir. 2002) (“[F]oreign sovereign immunity extends to individuals acting in their official capacities as officers,” but does not apply to officials who act outside the scope of their authority); El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996) (“An individual can qualify as an ‘agency or instrumentality of a foreign state’ ” under the FSIA (quoting 28 U.S.C. Section 1603(b))); Trujillo v. Banco Central del Ecuador, 17 F. Supp. 2d 1340, 1344 (S.D. Fla. 1998) (“Individuals acting in their official capacities are considered agencies or instrumentalities of a foreign sovereign for purposes of the FSIA.”); Supra Med. Corp. v. McGonigle, 955 F. Supp. 374, 378 (E.D. Pa. 1997) (stating in dicta that Chuidian doctrine immunized officials acting within the scope of their official authority). 33

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bin Khalifa al Nahyan held that officials may only be immunized for acts that fall within the scope of their authority.38 The Second Circuit appears to have rejected any application of FSIA immunity to individuals, despite a contrary opinion from a district court. In re Terrorist Attacks on September 11, 2001, involved claims against Saudi government officials.39 The district court held that FSIA immunity extended to two officials of the Saudi government “to the extent their alleged actions were performed in their official capacities.”40 While the Second Circuit has not heard this case, in Tachiona v. United States, the circuit suggested that the FSIA does not apply to heads of state and expressed “doubt as to whether the FSIA was meant to supplant the ‘common law’ of head-of-state immunity, which generally entailed deference to the executive branch’s suggestions of immunity.”41 Furthermore, the court found the definition of agency and instrumentality within 28 U.S.C. Section 1603(b) to use terms not usually intended to describe natural persons.42 The court also noted that the legislative history of the FSIA did not extend immunity to heads of state or other foreign officials.43 38 115 F.3d 1020, 1027 (D.C. Cir. 1997). Belhas v. Ya’alon, 466 F. Supp. 2d 127, 12930 (D.D.C. 2006), is arguably contrary to Jungquist in concluding that jurisdiction depends on finding an exception to the FSIA. An earlier D.C. District Court case also contains dicta that is contrary to Jungquist. That district court extended FSIA immunity to foreign officials whose acts violated jus cogens. Doe v. State of Israel, 400 F. Supp. 2d 86, 105 (D.D.C. 2005). In State of Israel, an anonymous group of Palestinians sued the government of Israel and various Israeli government officials for genocide. Id. at 96-98. While not ruling on the issue, the court theorized that the violation of a jus cogens norm is not an implicit waiver of immunity under Section 1605(a) of the FSIA because Israel has never “indicated its amenability to suit” or ever intended to do so. Id. at 105 (internal quotation marks omitted). This is an incorrect analysis of the issue. The question is whether an individual official is even covered by the FSIA: he is not if his acts are outside the scope of his legal authority. It is not a question of waiver or consent to suit. No other court has followed the court’s reasoning regarding jus cogens. 39 349 F. Supp. 2d 765 (S.D.N.Y. 2005). 40 Id. at 788. 41 386 F.3d 205, 220 (2d Cir. 2004). 42 Id. at 221. 43 Id. But see Matar v. Dichter, Civ. No. 05-10270 (S.D.N.Y. May 2, 2007) (granting defendant’s motion to dismiss), available at www.ccr-ny.org/humanrightsbook (holding that the Second Circuit’s discussion in Tachiona was non-binding dicta, id. at 10, and that the FSIA does apply to individuals, id. at 6-11).

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The Seventh Circuit has explicitly rejected application of the FSIA to foreign officials, even if they are acting within the scope of their authority. In Enahoro v. Abubakar, Nigerian citizens brought suit under the ATS against General Abubakar for violations of human rights.44 The Seventh Circuit ruled that Abubakar was not immunized from suit under the FSIA. Relying on its previous decision in Wei Ye v. Jiang Zemin,45 the court stated that the FSIA does not grant immunity to heads of state.46 Additionally, the court held that, for immunity purposes, the language of 28 U.S.C. Section 1603 (defining a foreign state as well as its agencies and instrumentalities) does not include foreign officials.47 The court also rejected the Ninth Circuit’s reasoning in Chuidian that a foreign official could be granted FSIA immunity because the act neither expressly includes nor excludes such a person.48 The court found that Chuidian’s reasoning is “upside down as a matter of logic” and ignores the traditional principle that “[t]he party claiming FSIA immunity bears the initial burden of proof of establishing a prima facie case that it satisfies the FSIA’s definition of a foreign state.”49 The court concluded that FSIA immunity does not extend to officials even if they are acting within the scope of their authority. A question that has arisen in at least one of the cases applying the FSIA is the choice of law employed to determine the official’s scope of authority. Is the scope of authority of the official measured by international law or the foreign sovereign’s law? In Doe v. Liu Qi, a district court in the Ninth Circuit held that the determination was to be made under the foreign sovereign’s law.50 Plaintiffs, practitioners of Falun Gong in China, claimed they had been arbitrarily detained, tortured, and subjected to cruel, inhuman, and degrading treatment by the order or authorization of the defendant, who was both the mayor of Beijing and a deputy provincial governor. Plaintiffs argued that the scope of authority should be measured by international law and that the acts committed against them were contrary to customary international law and violations of jus cogens norms. In essence, the plaintiffs were arguing that a state could not grant legal authority to its officials to violate jus cogens prohibitions. The court held that Chinese law governed. The court confronted an apparent contradiction in Chinese law, 44 45 46 47 48 49 50

408 F.3d 877, 878-80 (7th Cir. 2005). 383 F.3d 620 (7th Cir. 2004). Enahoro v. Abubakar, 408 F.3d 877, 881 (7th Cir. 2005). Id. Id. at 882. Id. 349 F. Supp. 2d 1258, 1283-84 (N.D. Cal. 2004).

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finding that although Chinese law prohibited the violations, the defendants’ were nevertheless authorized by “the covert unofficial policy” of China.51 The court went on to note that, under U.S. law, acts that are outside the legal grant of authority are not immunized, even if covertly approved by the sovereign. By analogy, acts outside the scope of legal authority were not entitled to immunity, even if they complied with a covert Chinese government policy.52 Thus, although a number of circuits have found the FSIA applicable to individual officials, that applicability extends only to official acts. Individuals acting outside the scope of their authority or contrary to law will not be granted immunity. As a rule, since no legal system officially approves of gross human rights violations, officials should not be granted immunity under the FSIA in human rights cases. To avoid FSIA problems, an ATS or TVPA complaint should allege that the defendant, while acting under color of law or actual or apparent authority, was also acting illegally and contrary to the law of the particular foreign state, as well as to international law. The complaint should also state that the defendant was acting beyond the scope of his or her authority and that the actions were not authorized by the foreign state. B. HEAD-OF-STATE IMMUNITY When ATS and TVPA suits are brought against a former or present head of state, defendants are likely to claim head-of-state immunity. No domestic human rights case has ever sustained this defense against a former head of state or the head of an unrecognized regime.53 Cases brought against current heads of state recognized by the United States, however, have all been dismissed on the basis of head-of-state immunity.54 51

Id. at 1286.

52

Id. at 1285-86.

53

See, e.g., In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) (former head of state); Trajano v. Marcos (In re Estate of Marcos Human Rights Litig.), 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993) (same); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (same); cf. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (self-declared head of unrecognized government). 54 See Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277, 280 (S.D.N.Y. 2001) (finding that the government’s filing of a “Suggestion of Immunity” is “entitled to conclusive deference from the courts”); Lafontant v. Aristide, 844 F. Supp. 128, 131-32 (E.D.N.Y. 1994) (finding same for current, recognized president of Haiti); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988), aff’d in part,

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Head-of-state immunity is the modern day analog of the “king shall do no wrong.”55 As explained by one district court judge, the doctrine is designed “to promote international comity and respect among sovereign nations by ensuring that leaders are free to perform their governmental duties without being subject to detention, arrest, or embarrassment in a foreign country’s legal system.”56 A claim of head-of-state immunity should be defeated if the leader is no longer the head of state. The doctrine concerns interference with a current head of state’s functions, not protection of former government leaders. As an “attribute of state sovereignty, not an individual right,” the immunity attaches to the head of state only while he or she occupies that office.57 Plaintiffs have won ATS judgments against at least two former heads of state, Ferdinand Marcos of the Philippines and Prosper Avril of Haiti.58 Head-of-state immunity can be waived by a foreign state.59 If the defendant is the current head of state, immunity can still be defeated if his or her government is not recognized by the United States. The criminal case against General Noriega, for example, was allowed to proceed.60 Likewise, Radovan Karadzic, putative head of the Bosnian Serb regime, was not the head 886 F.2d 438 (D.C. Cir. 1989) (affording Prime Minister of England immunity as the head of government). In these cases, the actions complained of were allegedly committed while the head of state was in office. It is not clear that the same result would obtain for actions committed prior to taking office. 55 U.S. courts have fashioned an analogous immunity to protect the president. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982), held that a president had absolute immunity from a civil suit for damages resulting from official actions taken while in office, as long as those acts were “within the ‘outer perimeter’ ” of the president’s official responsibility, id. at 757. Jones v. Clinton, 869 F. Supp. 690, 698 (E.D. Ark. 1994), stated that this absolute immunity did not apply to civil causes of action arising prior to assuming office. 56 United States v. Noriega, 746 F. Supp. 1506, 1519 (S.D. Fla. 1990); see also Lafontant v. Aristide, 844 F. Supp. 128, 132 (E.D.N.Y. 1994). 57 In re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108, 1111 (4th Cir. 1987); see also Estate of Domingo v. Republic of the Philippines, 694 F. Supp. 782, 786 (W.D. Wash. 1988). 58 Hilao v. Marcos, 103 F.3d 767 (9th Cir. 1996); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993). In both cases, the current government had formally waived any possible immunity. See Section D. 59 See discussion of waivers in Section D. 60 United States v. Noriega, 746 F. Supp. 1506, 1519-20 (S.D. Fla. 1990) (defendant’s government not recognized by the United States).

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of a government recognized by the United States and could not assert head-of-state immunity.61 Several courts have suggested in dicta that even defendants who are current heads of state of governments recognized by the United States should not be given immunity for acts such as torture and summary execution.62 However, a district court in the Second Circuit held that the nature of an act allegedly committed by Haitian President Aristide was irrelevant to the question of head-of-state immunity.63 The court concluded that a head of state recognized by the U.S. government, for whom the executive branch has requested immunity, is absolutely immune from personal jurisdiction in United States courts unless the immunity has been waived.64 While Lafontant v. Aristide concerned a single act of alleged summary execution, not a pattern of gross human rights violations, the court’s decision did not turn on the nature of the act, but rather on its finding that determinations regarding head-of-state immunity were the role of the executive branch and that the executive’s suggestion of immunity was, therefore, conclusive.65 In 2004, the Second Circuit addressed head-of-state immunity in Tachiona v. United States.66 Victims of human rights violations in Zimbabwe brought suit under the ATS and TVPA against Robert Mugabe, President of Zimbabwe and 61 Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir. 1995) (“Recognized states enjoy certain privileges and immunities relevant to judicial proceedings,” including, inter alia, head-of-state immunity); id. at 248 (possibility that defendant might be recognized as a head of state in the future does not entitle him to any such immunity now). 62 See United States v. Noriega, 746 F. Supp. 1506, 1519 n.11 (S.D. Fla. 1990) (noting “ample doubt” that “head-of-state immunity extend[ed] to private or criminal acts in violation of U.S. law”). 63 Lafontant v. Aristide, 844 F. Supp. 128, 139 (E.D.N.Y. 1994). 64 Id. at 131-32. The plaintiff in Lafontant argued that the FSIA and the TVPA had abrogated international and common law head-of-state immunity, thereby rendering President Aristide subject to suit. In a thorough analysis of the two statutes, the court rejected both arguments. Id. at 135-39. 65 Id. at 132-33, 139. Procedurally, a claim of head-of-state immunity is raised pursuant to 22 U.S.C. Section 254d by the defendant claiming such immunity. The court will then request the views of the U.S. government; if immunity is deemed appropriate, the executive branch will file a “suggestion of immunity” letter pursuant to 28 U.S.C. Section 517 (authorizing Attorney General to participate in any pending court proceeding “to attend to the interests of the United States”). 66 386 F.3d 205 (2d Cir. 2004).

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its foreign minister, Stan Mudenge, in their individual capacities. The U.S. government filed a “suggestion of immunity” pursuant to 28 U.S.C. Section 517, asserting that the suit should be dismissed on the grounds of diplomatic and head-of-state immunity.67 While the court did not ultimately decide whether head-of-state immunity applied, in dicta it rejected plaintiffs’ arguments that the FSIA overrode the “common law” of head-of-state immunity in which deference was given to suggestions of immunity by the executive branch.68 Courts have uniformly given deference to the U.S. government’s suggestion that head-of-state immunity is applicable to the current head of state of a recognized government.69 The legislative history of the TVPA likewise indicates that there is no exception to head-of-state immunity for TVPA claims of torture or summary execution.70 67

Id. at 209. Head-of-state immunity, while initially understood to extend only to the head of state, has been expanded somewhat, at least by the International Court of Justice. In Democratic Republic of Congo v. Belgium, the Court adjudicated the lawfulness of a Belgium arrest warrant against the foreign minister of the Congo. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 2002 I.C.J. 3 (Feb. 14). A majority of the justices found that personal immunity applies to “certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs.” Id. at 20-21. Limitations on the reach of this immunity under international law were briefed in the cases discussed supra note 19. In Tachiona v. United States, 386 F.3d 205, 221 (2d Cir. 2004), the Second Circuit did not address the question of whether head-of-state immunity could be extended to a foreign minister, presumably because it dismissed the case on the basis of diplomatic immunity. 68 Id. at 220-21. Plaintiffs had argued that the FSIA applied and that because of the nature of the human rights violations neither defendant would be protected under the act. Id. at 210. 69 See, e.g., Leutwyler v. Office of her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277, 280 (S.D.N.Y. 2001) (dismissing all claims against Queen Rania because the government filed a suggestion of immunity); Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379, 382 (S.D. Tex. 1994) (dismissing claims against King Fahd because the United States intervened to acknowledge his status as head of state), aff’d, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision); Kline v. Kaneko, 535 N.Y.S.2d 303, 305 (N.Y. Sup. Ct. 1988) (finding that “[t]he FSIA made no change . . . in the State Department’s power to suggest immunity for foreign heads of state” and dismissing suit against wife of Mexican president because State Department suggested immunity). 70 The House Report stated definitively that “nothing in the TVPA overrides the doctrines of diplomatic and head of state immunity. These doctrines would generally provide a defense to suits against foreign heads of state and other diplomats visiting the United States on official business.” H.R. REP. NO. 102-367, at 5 (1991), reprinted in 1992

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C. DIPLOMATIC IMMUNITY As a result of several overlapping immunity doctrines, lawsuits against accredited diplomats will probably be dismissed,71 as will many claims against certain other high-ranking government representatives, officials of the United Nations, and many international organizations. Coverage is not absolute, however, and the details of the various immunity provisions should be checked carefully before concluding that a potential defendant is immune from suit for human rights violations. 1.

Accredited Diplomats and Consular Officers

Diplomatic immunity is defined as “the freedom from local jurisdiction accorded under principles of international law by the receiving state to the duly accredited diplomatic representatives of other states.”72 It is “seen as functional—necessary for the orderly and effective conduct of friendly relations between states.”73 The Diplomatic Relations Act74 and the Vienna Convention on Diplomatic Relations grant diplomats immunity from criminal as well as civil jurisdiction, with limited exceptions not relevant to ATS or TVPA lawsuits.75 In particular, no exception is made for conduct occurring prior to the obtaining of diplomatic status or for allegations of gross human rights violations. The legislative history of the TVPA recognizes that the statute does not override diplomatic immunity, noting that diplomats visiting the United States are generally protected against suit.76 U.S.C.C.A.N. 88. The Senate Report concurred: “The TVPA is not intended to override traditional diplomatic immunities which prevent the exercise of jurisdiction by U.S. courts over foreign diplomats. . . . Nor should visiting heads of state be subject to suits under the TVPA.” S. REP. NO. 102-249, at 7-8 (1992). 71

See, e.g., Ahmed v. Hoque, Civ. No. 01-7224, 2002 WL 1964806 (S.D.N.Y. Aug. 23, 2002). 72

United States v. Enger, 472 F. Supp. 490, 504 (D.N.J. 1978).

73

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES pt. IV, ch. 6, subch. A, introductory note (1987). 74

22 U.S.C. § 254a et seq.

75

The exceptions are for real estate actions for privately held property, actions regarding estates, and professional or commercial activity in the receiving state. Vienna Convention on Diplomatic Relations, art. 31. 76 H.R. REP. NO. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 88. The Senate Report explains this with greater detail:

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In at least one instance, a plaintiff in a human rights case argued unsuccessfully that diplomatic immunity should not include immunity from suits for war crimes.77 In Aidi v. Yaron, a civil suit brought against the Israeli general allegedly responsible for massacres at the Sabra and Shatila refugee camps in Lebanon, a federal district court rejected this argument. At the time of service, the defendant was an accredited diplomat in the United States. The court said that even assuming, arguendo, that war crimes constituted an exception to diplomatic immunity, that exception only covered criminal prosecutions for international crimes, not civil suits; thus, the court concluded that even war criminals were immune from civil suits seeking damages for torts.78 Given the Yaron decision, the legislative history of the TVPA, and the language of the Vienna Convention, it is unlikely that an ATS or TVPA suit against a diplomat will prevail. Although it is extremely difficult to sue diplomats, not everyone who has a diplomatic passport is an accredited diplomat. Many of the officials or former officials of a foreign state who carry diplomatic passports are not actually accredited by the U.S. government and are, therefore, not entitled to immunity. Also, members of the administrative, technical, and service staff of an embassy or mission are not as broadly protected as are diplomats.79 Consular officers have less immunity than diplomats.80 Their immunity “from arrest, detention, and criminal or civil process is not general, but applies only to acts or omissions in the performance of official . . . duties.”81 This may permit human rights suits against such officials. The TVPA is not intended to override traditional diplomatic immunities which prevent the exercise of jurisdiction by U.S. courts over foreign diplomats. The United States is a party to the Vienna Convention on Diplomatic Relations, under which diplomats are immune from civil lawsuits except with regard to certain commercial activities. S. REP. NO. 102-249, at 7 (1992). 77 Aidi v. Yaron, 672 F. Supp. 516 (D.D.C. 1987). 78 Id. at 518. 79 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 464 cmt. a (1987); Vienna Convention on Diplomatic Relations, art. 37. 80 Compare Vienna Convention on Diplomatic Relations, art. 37, with Vienna Convention on Consular Relations. 81 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 465 cmt. a (1987); see Vienna Convention on Consular Relations, arts. 41-43.

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2.

‘‘Mission’’ Immunity

High officials of a country and their staffs on official visits, including those attending international conferences, may enjoy immunity equivalent to diplomatic immunity.82 The receiving state must have consented to the mission and may need to consent to immunity for the individual attendees. The United States has not ratified the Convention on Special Missions, which governs such immunities. Consequently, according to the Restatement (Third), the “law as to ‘itinerant envoys,’ special representatives, representatives to international conferences, and other participants in diplomacy remains uncertain.”83 The Convention on Special Missions, however, may reflect customary international law.84 Moreover, in a case filed by Falun Gong practitioners against a Chinese government official, the U.S. government has filed a Suggestion of Immunity arguing that the defendant was immune from suit because he was on “a special diplomatic mission” when served with process.85 The brief does not mention the Convention on Special Missions. Instead, the argument is based on an alleged executive branch constitutional power to determine that “senior foreign officials on special diplomatic missions” are immune from personal jurisdiction during their stay in the United States.86 3.

Officials of the United Nations and Other Public International Organizations

U.S. law and international agreements grant varying degrees of immunity to the property and representatives of the United Nations, the Organization of American States, and a host of other public international organizations. The scope of the immunity varies depending on the terms of the agreement and the status of the person claiming immunity. While full immunity protects the holder from any civil suit, functional immunity only grants immunity necessary to carry out the purpose of the protected organization.87 This section briefly notes some 82

RESTATEMENT (THIRD) 464 cmt. i (1987). 83

Id., § 464 note 13.

84

Id.

OF THE

FOREIGN RELATIONS LAW

OF THE

UNITED STATES §

85

Suggestion of Immunity and Statement of Interest of the United States, Li Weixum v. Bo Xilai, Civ. No. 04-0649, at 4-11 (July 24, 2006), available at www.ccr-ny.org/ humanrightsbook. 86 87

Id. at 5.

In general, international agreements grant full immunity to permanent representatives of certain organizations, such as the United Nations, and functional immunity to less significant organizations and transients attending particular meetings.

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of the most relevant agreements that must be consulted prior to litigation. If a potential defendant is associated with an international organization, his or her exact status and the potential immunities should be fully reviewed. The International Organizations Immunities Act88 provides a “public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress . . . and which shall have been designated by the President through appropriate Executive order”89 with the same immunity from judicial process as is enjoyed by foreign governments.90 Officers and employees of such organizations and their family members have the same immunities as the officers, employees, and family members of foreign states.91 Like all such immunities, this immunity can be waived. A great many organizations are protected by this statute, including the Organization of American States, African Union, International Monetary Fund, and others that are less well known, such as the Pacific Salmon Commission.92 Special provisions govern the immunities of the United Nations and its personnel.93 These state that certain categories of U.N. personnel—including certain U.N. employees, representatives of governments that are members of the United Nations,94 and representatives of U.N. agencies—are to be afforded the same “privileges and immunities” as diplomats,95 while certain transients representing states at U.N. meetings in New York City receive functional 88

22 U.S.C. § 288 et seq. 22 U.S.C. § 288. 90 22 U.S.C. § 288a; see also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 467(1) (1987), which states that under international law, international organizations enjoy such privileges and immunities as are necessary for the purpose of the organization. 91 22 U.S.C. § 288d. 92 See generally FREDERIC L. KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING 54-79 (2d ed. 1993). 93 See U.N. CHARTER, art. 105; Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (Headquarters Agreement), reprinted at 22 U.S.C. § 287 note; Convention on Privileges and Immunities of the United Nations. 94 The immunity of representatives of governments that are not recognized by the United States is subject to certain limitations. Headquarters Agreement, § 15. 95 For a comparison of the traditional immunities of diplomats and U.N. officials, see Yu-Long Ling, A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents, 33 WASH. & LEE L. REV. 91 (1976). 89

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immunities. Other U.N. staff members may be entitled to immunity, subject to prior agreement between the U.N. Secretary-General, the U.S. government, and the government of the country of origin.96 The Headquarters Agreement also states that no one—whether or not he or she has immunity—can be served with process within the boundaries of the U.N. Headquarters District without the consent of the Secretary-General.97 In Tachiona v. United States,98 the Second Circuit dealt at some length with the interplay between the immunity offered to temporary U.N. representatives by the Convention on Privileges and Immunities and the fuller range of immunity encompassed in the Vienna Convention on Diplomatic Relations. The decision found that a section of the Convention on Privileges and Immunities was ambiguous and gave Mugabe the full protections of Article 31 of the Vienna Convention, even though he was served with process while attending a private activity unrelated to his duties as a U.N. representative.99 The defendant in another Second Circuit case claimed immunity as an “invitee” of the United Nations.100 The Second Circuit rejected his claim, noting that the official position of both the U.S. government and the United Nations is that U.N. invitees are not entitled to immunity and declining to extend the provisions of the Headquarters Agreement beyond its express terms.101 96

Headquarters Agreement, § 15.

97

Headquarters Agreement, § 9. The Headquarters District, comprising approximately six blocks, is defined in Annex 1 to the Headquarters Agreement. 98

386 F.3d 205 (2d Cir. 2004).

99

Id. at 216-19.

100

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). Karadzic came to the United States to participate in negotiations held at the United Nations. He was served with process outside of the boundaries of the United Nations. 101

Id. at 247-48 (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF UNITED STATES § 469 note 8); see In re Henrique Galvao, 1963 U.N. JURID. Y.B. 164 (opinion of U.N. legal counsel). Permanent observer missions are entitled to functional privileges and immunity, while journalists or representatives of non-governmental organizations are entitled to no immunity. See Scope of Privileges and Immunities of a Permanent Observer Mission to the United Nations, 1982 U.N. JURID. Y.B. 236 (opinion of U.N. legal counsel); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 469 note 8 (1987). But see Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 48 (2d Cir. 1991) (finding that Palestine Liberation Organization was not immune because of observer status at United Nations, but U.N. activities could not be used as basis of jurisdiction). THE

Immunities 383

Before a complaint is filed against anyone associated with the United Nations or any other international organization, the nature of the immunity granted the organization, if any, and the relationship of the potential defendant to the organization, must be determined. Only after an examination of the relevant statutes and agreements can a decision be made regarding whether the putative defendant is protected by some form of immunity. D. WAIVERS OF IMMUNITY One way to ensure that the defendant cannot rely upon the FSIA, head-of-state or diplomatic immunity is to obtain a waiver of those immunities from the foreign state. This may not be possible, particularly if the defendant is still an official of the foreign state. However, waivers have been obtained from foreign governments in several human rights cases involving former officials, and their validity has been upheld by the courts.102 The FSIA explicitly permits waivers as a general exception to its immunity provisions: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the foreign state has waived its immunity either explicitly or by implication.”103 To qualify as a valid waiver, the language should be unambiguous and signed by a responsible official of the state. The waiver in Paul v. Avril, for example, was signed by the Minister of Justice of Haiti.104 A waiver should address every possible immunity the defendant might assert. The waiver in Avril, for example, stated that the defendant: enjoys absolutely no form of immunity, whether it be of a sovereign, a chief of state, a former chief of state; whether it be diplomatic, consular, or testimonial immunity, or all other immunity, including immunity against judgment, or process, immunity against enforcement of judgments and immunity against appearing before court and after judgment.105 102 See, e.g., In re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108, 1110-11 (4th Cir. 1987) (upholding waiver of head-of-state immunity against Marcos); Paul v. Avril, 812 F. Supp. 207, 210-11 (S.D. Fla. 1993) (upholding government of Haiti’s waiver of all immunities). 103 28 U.S.C. § 1605(a)(1). 104 Paul v. Avril, 812 F. Supp. 207, 210 (S.D. Fla. 1993). 105 Id.

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A waiver such as this should be sufficient to waive not just any FSIA immunities, but head-of-state and diplomatic immunity as well.106 106 The plaintiff in Lafontant v. Aristide, 844 F. Supp. 128, 134 (E.D.N.Y. 1994), argued that a warrant issued for President Aristide’s arrest and a personal note allegedly signed by President Aristide declaring that he renounced the presidency constituted a waiver of head-of-state immunity. The court rejected the waiver argument, even assuming the documents were valid: Here there has been no explicit waiver of President Aristide’s immunity recognized as a waiver by the United States. Unlike In re Mr. and Mrs. Doe, 860 F.2d 40 (2[d] Cir. 1988), where the recognized Philippines government specifically waived the Marcoses’ head-of-state immunity, the unrecognized de facto rulers of Haiti have no power to and have not undertaken any action accepted by our government as an implicit waiver of immunity.

CHAPTER 15 MISCELLANEOUS DEFENSES

Defendants in human rights cases often raise defenses that are common to all federal claims. The unusual facts of international human rights claims, however, may complicate application of these common doctrines. For example, the applicable statute of limitations will often be tolled because circumstances in the plaintiffs’ home countries make it impossible to seek relief without endangering their lives, or because the defendant is absent from the jurisdiction of the federal courts. Given that most cases involve events that took place in foreign countries, defendants may seek to dismiss for forum non conveniens and failure to exhaust domestic remedies. This chapter addresses these three common defenses to human rights lawsuits. A. STATUTE OF LIMITATIONS Although they arrive at the figure by different paths, three of the key human rights statutes are governed by a ten-year statute of limitations. The fourth is governed by a four-year statute of limitations. All four permit equitable tolling of the statute. The statute for a state law claim will depend on a state choice of law analysis. The Torture Victim Protection Act (TVPA). The TVPA specifies a ten-year statute of limitations.1 The “state sponsors of terrorism” exception. Suits under the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA) are governed by an explicit ten-year statute of limitations.2 The Anti-Terrorism Act (ATA). The ATA contains an explicit four-year statute of limitations.3 1 28 U.S.C. § 1350 (note), § 2(c) (“No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.”). 2 28 U.S.C. § 1605(f) (“No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose.”). 3 18 U.S.C. § 2335(a).

385

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The Alien Tort Statute (ATS). The ATS does not contain an express statute of limitations. The cause of action in an ATS suit is based in federal common law; as a result, the federal courts look to multiple sources to craft the appropriate rules.4 All ATS cases to date have noted the two-step general rule applicable when a federal statute does not contain a limitations period: the courts look to the closest analogous state law and apply the relevant statute of limitations,5 unless they conclude that it would be more appropriate to import the statute of limitations of a closely analogous federal statute: [W]hen a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law.6 Every ATS case that has addressed this issue has concluded that the ATS should apply the TVPA’s ten-year statute of limitations, based on the close similarities between the two statutes.7 State law claims. State law claims such as wrongful death, assault, false imprisonment or intentional infliction of emotional harm will be governed by the applicable state statutes of limitations, as well as by state equitable tolling rules. In some states, choice of law rules may point to application of the statute of limitations of the place where the incidents took place. In either event, state or 4

See Chapter 2, Section B, analyzing the source of the ATS cause of action and Chapter 2, Section C, discussing choice of law in ATS cases. 5 Reed v. United Transp. Union, 488 U.S. 319, 324 (1989) (noting the “general rule that statutes of limitation are to be borrowed from state law.”). For claims of war crimes and crimes against humanity, international law bars application of any statute of limitations. See Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity. Although the U.S. is not a party, this treaty arguably codifies customary international law. 6 DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 172 (1983). 7 See, e.g., Arce v. Garcia, 434 F.3d 1254, 1264 (11th Cir. 2006) (applying TVPA’s ten-year statute of limitations to ATS claim); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005) (“It is clear that ‘[t]he ATCA and the TVPA share the same ten-year statute of limitations.’ ”) (alteration in original) (quoting Arce v. Garcia, 400 F.3d 1340, 1346 (11th Cir. 2005)); Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir. 2002); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 118-19 (D.D.C. 2003); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1194-96 (S.D.N.Y. 1996). Papa includes a thorough discussion of the factors supporting application of the TVPA’s statute of limitations. Papa v. United States, 281 F.3d 1004, 1011-13 (9th Cir. 2002).

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foreign statutes of limitations may be significantly shorter than the four- or ten-year statutes found in the federal human rights statutes. 1.

Equitable Tolling

Statutes of limitations in human rights cases are subject to equitable tolling.8 The “state sponsors of terrorism” exception to the FSIA specifically states that equitable tolling principles apply.9 The ATA also has an explicit tolling provision: The time of the absence of the defendant from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, or of any concealment of the defendant’s whereabouts, shall not be included in the 4-year [statute of limitations] period.10 Although a specific reference to equitable tolling was removed from the TVPA before it was enacted,11 legislative reports from both the Senate and the House note that tolling principles apply. The House Report states, “In some instances, such as where a defendant fraudulently conceals his or her identification or whereabouts from the claimant, equitable tolling remedies may apply to preserve a claimant’s rights.”12 The Senate Report declares: Illustrative, but not exhaustive, of the types of tolling principles which may be applicable include the following. The statute of limitations should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be 8

See Young v. United States, 535 U.S. 43, 49 (2002) (“It is hornbook law that limitations periods are customarily subject to equitable tolling unless tolling would be inconsistent with the text of the relevant statute.” (internal quotation marks and citation omitted)). 9 28 U.S. C. § 1605(f) (“All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period.”). 10 18 U.S.C. § 2335(b). 11 An earlier version of the bill contained an additional sentence stating, “All principles of equitable tolling, however, shall apply in calculating the limitation period,” which was omitted from the final version of the statute. 12 H.R. REP. NO. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 88.

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the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated. It should also be tolled where the defendant has concealed his or her whereabouts or the plaintiff has been unable to discover the identity of the offender.13 Courts considering the issue have all concluded that equitable tolling principles apply to both ATS and TVPA actions.14 Given that most human rights cases arise out of egregious human rights violations, the courts have had little difficulty finding that equitable tolling applies in most of the cases in which it has become an issue.15 Several circuit court decisions have found statutes of limitations tolled for considerable periods of time. In Hilao v. Estate of Marcos, for example, the Ninth Circuit held that the statute was tolled for several reasons during the period when Ferdinand Marcos was president of the Philippines: Marcos had been granted immunity from suit; victims of human rights abuses feared reprisal if they sought redress; and the judiciary was dependent on Marcos.16 “Given these extraordinary conditions, any claims against Marcos for injury from torture, ‘disappearance,’ or summary execution were tolled until he left office in February 1986.”17 The Eleventh Circuit in Cabello v. Ferna´ndez-Larios also tolled the statute of limitations in a lawsuit filed 26 years after the victim’s death.18 In that case, Winston Cabello, an economist working for Chilean President Salvador Allende, was detained shortly after the 1973 military coup that ousted Allende and brought Augusto Pinochet to power. The following month, a unit of the Chilean military, including the defendant, embarked upon what came to be known as the “Caravan of Death,” traveling to several cities and torturing and killing prisoners detained because of their alleged opposition to the military regime. Cabello was one of those killed, stabbed to death while in military custody. Cabello’s family 13

S. REP. NO. 102-249, at 10-11 (1991), quoted in Arce v. Garcia, 434 F.3d 1254, 1262 (11th Cir. 2006). 14 See, e.g., Arce v. Garcia, 434 F.3d 1254, 1262 (11th Cir. 2006) (looking at the intent underlying the ATS and the TVPA and concluding that the court must apply equitable tolling principles “to ensure that abuses occurring abroad do not thwart the fair administration of justice in the courts of the United States.”). 15 The plaintiff bears the burden of proof on the issue of equitable tolling. Id. at 1261. 16 103 F.3d 767, 773 (9th Cir. 1996). 17 Id. 18 402 F.3d 1148 (11th Cir. 2005).

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received several different versions of his murder from the government over the next 12 years, including the assertion that he had been shot. Only after the military government was replaced in 1990 was the family able to exhume Cabello’s body and learn that he had been stabbed to death. The Eleventh Circuit concluded that under these “extraordinary circumstances” the statute had been tolled until 1990: The Chilean government, with whom Ferna´ndez conspired, concealed both the manner in which Cabello died and his place of burial. . . . Until the first post-junta civilian president was elected in 1990, the Chilean political climate prevented the Cabello family from pursuing any efforts to learn of the incidents surrounding Cabello’s murder. . . . As a result of this deliberate concealment by Chilean authorities, equitable tolling is appropriate in this case.19 The court focused on several factors that justify equitable tolling: the defendant misled the plaintiffs; the plaintiffs had no way to discover the wrong perpetrated against them; and the political climate blocked the plaintiffs’ efforts to investigate the abuse.20 The Eleventh Circuit also upheld a district court’s finding of equitable tolling in Arce v. Garcia, even in the absence of explicit evidence of affirmative misconduct by the defendants.21 In a case on behalf of three Salvadorans tortured while detained by the military, the court first recognized that the statute of limitations was tolled until the defendants came to the United States. Second, the court held that the political conditions in El Salvador prevented the plaintiffs from filing suit until the civil war ended: The [district] court found that the plaintiffs legitimately feared reprisals from the Salvadoran military, despite the fact that the defendants resided in the United States. The military regime, in which both [defendants] had held positions of great influence, remained in power. State-sponsored acts of violence and oppression continued to ravage El Salvador. The very regime against whom the plaintiffs leveled their accusations remained intent on maintaining its power at any cost and acted with impunity to do so. [Plaintiff] could not reasonably have expected to achieve justice until after the military regime fell from 19

Id. at 1155. Id. 21 434 F.3d 1254, 1264-65 (11th Cir. 2006). In Arce, the circuit vacated a prior opinion in which it had rejected the district court’s application of equitable tolling principles. Id. at 1255. 20

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power in 1992; only then could the evidence have come to light and [he] have made his claims without fear of reprisal against family and friends in El Salvador.22 The court concluded with a recognition that the policies underlying the ATS and the TVPA require flexible application of the equitable tolling doctrine: The remedial scheme conceived by the TVPA and the ATCA would fail if courts allowed the clock to run on potentially meritorious claims while the regime responsible for the heinous acts for which these statutes provide redress remains in power, frightening those who may wish to come forward from ever telling their stories.23 Applying this approach, the Eleventh Circuit in Jean v. Dorelien reversed a statute of limitations dismissal of a claim arising in Haiti.24 The circuit held that the regime’s pattern of repression, torture, and other crimes against humanity constituted extraordinary circumstances tolling the statute of limitations through the point at which defendant was removed from power in Haiti and present in the United States.25 A number of other tolling doctrines presumably apply to human rights lawsuits but have not been litigated to date, including, for example, while the plaintiff is a minor. 2.

Retroactivity

Defendants have argued that application of the TVPA’s ten-year statute of limitations to claims that occurred before the TVPA was enacted might result in the impermissible revival of claims that would have been extinguished under a preexisting, shorter statute of limitations. Every court that has faced this issue has concluded that there is no problem of retroactivity, because these lawsuits do not increase the defendant’s liability, impair rights, or impose new duties.26 22

Id. at 1265.

23

Id.

24

431 F.3d 776 (11th Cir 2005).

25

Id. at 780-81; see also Chavez v. Carranza, 407 F. Supp. 2d 925, 929-30 (W.D. Tenn. 2004) (appeal pending), in which the court found that the statute of limitations should be tolled not just to the point at which El Salvador’s military dictatorship left power, but either until the date of the first national elections or even later, until the date of the first “relatively peaceful” elections; the court noted that it did not need to decide this question because either date would satisfy the statute of limitations. 26

See Cabello v. Ferna´ndez Larios, 402 F.3d 1148, 1153-54 (11th Cir. 2005); AlvarezMachain v. United States, 107 F.3d 696, 702-03 (9th Cir. 1997); Cabiri v. Assasie-

Miscellaneous Defenses

391

This analysis is based on the Supreme Court’s rulings on retroactivity: statutes that merely shift jurisdiction or impose consequences for conduct that has been previously prohibited do not have an impermissible retroactive effect.27 As discussed in Chapter 4, the courts have unanimously held that the TVPA can be applied to events that took place before the statute was enacted in 1992. Similarly, courts borrowing the TVPA’s statute of limitations have also held that it can be applied to conduct that occurred before it was enacted.28 B. FORUM NON CONVENIENS In a motion for dismissal based on forum non conveniens, defendants argue that a U.S. court is not the appropriate forum for the claims against them. Because most human rights claims arise, at least in part, from conduct that occurs outside the United States, defendants commonly seek dismissal on this basis.29 The doctrine applies to ATS and TVPA claims, but, for reasons explained below, rarely, if ever, to ATA or FSIA cases. Dismissal “can represent a huge setback in a plaintiff’s efforts to seek reparations” due to “the enormous difficulty of bringing suits to vindicate such abuses.”30 For that reason, a motion to dismiss on forum non conveniens grounds will usually be intensively litigated at the outset of the case. Defending against such a motion usually requires affidavits, including from expert witnesses, to demonstrate why it would be Gyimah, 921 F. Supp. 1189, 1194-97 (S.D.N.Y. 1996); Xuncax v. Gramajo, 886 F. Supp. 162, 176-78 (D. Mass. 1995). 27 Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). 28 See, e.g., Cabello v. Ferna´ndez Larios, 402 F.3d 1148, 1154 (11th Cir. 2005); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1196 (S.D.N.Y. 1996). 29 See, e.g., Aguinda v. Texaco, Inc., 303 F.3d 470, 475 (2d Cir. 2002); Bigio v. CocaCola Co., 239 F.3d 440, 446 (2d Cir. 2000); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99-108 (2d Cir. 2000); In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 500 (9th Cir. 1992); Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 879-80 (2d Cir. 1980); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 321, 33541 (S.D.N.Y. 2003); Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1164-78 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 30 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105, 106 (2d Cir. 2000); see also Kathryn Lee Boyd, The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation, 39 VA. J. INT’L L. 41 (1998); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650, 670-72 (1992) (describing the “outcome-determinative” effect of forum non conveniens dismissals).

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inappropriate to litigate the case in the country where the underlying violations occurred. Forum non conveniens analysis assumes that the court has personal and subject matter jurisdiction over the case. A court weighs various factors—including the forum choice of the plaintiff, the adequacy of the proposed alternative forum, the convenience of the parties, and the public interest in the subject matter of the litigation—to determine whether the case should be dismissed in favor of an alternative and (often only theoretically) available forum. The framework for forum non conveniens analysis was set by Gulf Oil Corp. v. Gilbert,31 Koster v. (American) Lumbermens Mutual Casualty Co.,32 and Piper Aircraft Co. v. Reyno.33 Under these cases, forum non conveniens is a discretionary, common law device permitting a court, in rare instances, to “dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.”34 1.

The Standard

In assessing whether forum non conveniens dismissal is appropriate, courts engage in a two-step process. The first step is to determine if an adequate alternative forum exists.35 Assuming that it does, the court then balances a series of factors involving the private interests of the parties in maintaining the litigation and the competing public interests at stake.36 The federal courts generally assume that an alternative forum is available if all parties “are amenable to process and are within the forum’s jurisdiction.”37 However, “where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied.”38 31

330 U.S. 501 (1947). 330 U.S. 518 (1947). 33 454 U.S. 235, 255 (1981). 34 PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)). 35 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947). 36 Id. at 508-09. 37 Kamel v. Hill-Rom Co., 108 F.3d 799, 803 (7th Cir. 1997); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947). 38 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). 32

Miscellaneous Defenses

393

“[A] plaintiff’s choice of forum should rarely be disturbed.”39 However, “somewhat more deference” is accorded the choice of a forum by its citizens and residents than that of “foreign plaintiffs.”40 As the Second Circuit explained in Wiwa v. Royal Dutch Petroleum Co., “[w]hile any plaintiff’s selection of a forum is entitled to deference, that deference increases as the plaintiff’s ties to the forum increase.”41 The Supreme Court has provided a list of “private interest factors” affecting the convenience of the litigants and a list of “public interest factors” affecting the convenience of the forum.42 The factors pertaining to the private interests of the litigants include: • • • •

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive.43

The public factors bearing on the question include: • • • • •

39 40 41 42 43 44

the administrative difficulties flowing from court congestion; the “local interest in having localized controversies decided at home”; the “interest in having the trial of a diversity case in a forum that is at home with the state law that must govern the [action]”; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.44

Gulf Oil Corp. v. Piper Aircraft Co. 226 F.3d 88, 101 Gulf Oil Corp. v. Id. at 508. Id. at 508-09.

Gilbert, 330 U.S. 501, 508 (1947). v. Reyno, 454 U.S. 235, 256 n.23 (1981). (2d Cir. 2000). Gilbert, 330 U.S. 501, 508-09 (1947).

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The defendant has the burden to establish that an adequate alternative forum exists and then to show that the pertinent factors “tilt[ ] strongly in favor of trial in the foreign forum.”45 2.

The Anti-Terrorism Act (ATA) and State Sponsors of Terrorism Claims

The ATA creates a specific forum non conveniens standard that makes it significantly more difficult to obtain a dismissal on this basis: Convenience of the forum.—The district court shall not dismiss any action brought under section 2333 of this title on the grounds of the inconvenience or inappropriateness of the forum chosen, unless— (1) the action may be maintained in a foreign court that has jurisdiction over the subject matter and over all the defendants; (2) that foreign court is significantly more convenient and appropriate; and (3) that foreign court offers a remedy which is substantially the same as the one available in the courts of the United States.46 In both Linde v. Arab Bank, PLC47 and Estates of Unger ex rel. Strachman v. Palestinian Authority, district courts held that defendants had failed to meet their burden of showing that this heightened standard for dismissal under the ATA had been met.48 Although forum non conveniens applies in general to cases litigated pursuant to the Foreign Sovereign Immunities Act (FSIA),49 some courts have held that forum non conveniens dismissals are not permitted under the “state sponsors of terrorism” exception.50 Moreover, the basic premise of the “state 45

R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991). 18 U.S.C. § 2334(d). 47 384 F. Supp. 2d 571, 591 n.13 (E.D.N.Y. 2005). 48 153 F. Supp. 2d 76, 99-100 (D.R.I. 2001). 49 28 U.S.C. §§ 1330, 1602-11, interpreted in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490 n.15 (1983) (the FSIA “does not appear to affect the traditional doctrine of forum non conveniens”). The FSIA and the “state sponsors of terrorism” exception are discussed in Chapter 5. 50 See Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38, 54 n.7 (D.D.C. 2000) (“Defendant’s request must fail because Congress has explicitly authorized this action, and in doing so has already balanced the interests of the United States in hearing such a suit in the federal courts of this country against the interests of Iraq in not being forced to defend here. It would be inappropriate for this Court to second-guess Congress and apply 46

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395

sponsors of terrorism” exception to the FSIA makes a forum non conveniens dismissal unlikely. The exception permits U.S. nationals to seek damages for extrajudicial execution, torture, hostage-taking, and aircraft sabotage from one of the handful of states labeled a sponsor of terrorism by the U.S. Department of State.51 The foreign state against which the claims are filed is unlikely to be recognized by a U.S. court as offering an adequate and available forum for litigation of such claims. In addition, most other states recognize foreign sovereign immunity, even for human rights abuses, and so would not offer available alternate fora. In a case against Libya, for example, the court rejected a motion to dismiss in favor of litigation in France, because France had not waived Libya’s sovereign immunity.52 3.

Application of the Doctrine in Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) Cases

Although frequently litigated, few ATS cases have been dismissed on forum non conveniens grounds.53 The Gilbert factors are considered below in the context of ATS litigation. a.

Adequate Alternative Forum

ATS litigation frequently involves events occurring outside the United States in areas beset by conflict or governed by repressive regimes. Since an alternative forum is inadequate if the claimants cannot pursue their case without its own balancing test where none is called for by the statute or manifest principles of constitutional law.”). 51 See Chapter 5. 52 Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54, 57 (D.D.C. 2003). 53 In Aguinda v. Texaco, Inc., 303 F.3d 470, 476-80 (2d Cir. 2002), the court dismissed the case on the condition that an interpretation of Ecuadorian law would not preclude plaintiffs from proceeding with their claims in Ecuador. In Abdullahi v. Pfizer, Civ. No. 01-8118, 2005 U.S. Dist. LEXIS 16126, at *55 (S.D.N.Y. Aug. 9, 2005), the court dismissed on other grounds but noted that it would condition dismissal on forum non conveniens grounds on defendant’s consent to suit and acceptance of process in Nigeria on the same claims by the same plaintiffs; defendant’s waiver of any statute of limitations defense available to it in Nigeria; defendant’s making available for discovery and for trial, at its own expense, any documents or witnesses, including retired employees, within its control; and defendant’s agreement that it would not act to prevent plaintiffs from returning to the U.S. court if the Nigerian courts declined to accept jurisdiction.

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fearing retaliation,54 plaintiffs’ challenges to the adequacy of the alternative forum proposed by defendants are often successful. Plaintiffs can rely on human rights reports from the U.S. State Department, Human Rights Watch, Amnesty International, and other governmental and non-governmental sources to support declarations concerning conditions in the proposed alternative forum. In Mujica v. Occidental Petroleum Corp., for example, the court noted that it had wide discretion to consider otherwise inadmissable evidence, such as these reports.55 54

See Aldana v. Fresh Del Monte Produce, Inc., Civ. No. 01-3399, 2003 U.S. Dist. LEXIS 26777, at *6 (S.D. Fla. June 5, 2003) (finding that “a credible threat of retaliatory violence against Plaintiffs renders the Guatemalan forum insufficient as an adequate alternative forum”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 336 (S.D.N.Y. 2003) (finding the alternative forum to be inadequate because, in part, “the victim would be endangered by merely returning” to his home country); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1199 (S.D.N.Y. 1996) (finding the alternative forum inadequate because the plaintiff “would be putting himself in grave danger were he to return to Ghana to prosecute this action”); cf. Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1267-68 (N.D. Ala. 2003) (finding that the plaintiffs had adequately alleged the unavailability of remedies, for TVPA exhaustion purposes, because they would have been at risk of retaliation). Other courts have considered a plaintiffs’ fear of retaliation as one aspect of an analysis of private convenience factors. See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1142-43 (C.D. Cal. 2005). In Mujica, the court discussed in great detail the dangers facing plaintiffs, and found that they could not return to Colombia without running a substantial risk to their safety. Id. at 1146. However, because plaintiffs could file a claim in Colombia, the court concluded that it weighed as a private interest factor. Id. at 1147. In Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1208 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822, the court stated that “plaintiffs’ fears, while an appropriate consideration in assessing whether private interest factors favor a forum non conveniens dismissal, do not render [Papua New Guinea] an inadequate forum.” The court found that the alternative forum was “adequate” but that “private factors” favored retention of jurisdiction given that plaintiffs were involved in a civil war against the government which was allegedly aligned with the defendants. Id. at 1174-75. See also In re Bridgestone/Firestone, Inc., 190 F. Supp. 2d 1125, 1144 (S.D. Ind. 2002) (considering the “political instability and violence in Colombia” in its private interest factors analysis). 55 381 F. Supp. 2d 1134, 1144 n.4 (C.D. Cal. 2005) (citing Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988)).

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Although some courts have found an alternative forum to be inadequate based on widespread corruption,56 these challenges have been less consistently successful.57 Piper Aircraft Co. v. Reyno recognized that dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.58 In Mujica, for example, the court held that Colombia was an inadequate alternative forum because of a rule of Colombian law that prevented plaintiffs from recovering against defendants who were not parties to a prior Colombian proceeding in which the plaintiffs received compensation from a different defendant.59 The unavailability of a remedy is a firmly established ground for finding that the alternative forum is inadequate. b.

The Deference Due Plaintiff’s Choice of Forum

Plaintiffs in an ATS action are necessarily aliens, although sometimes residing in the United States. Thus, the case law referenced above, indicating that “somewhat less deference” is due “foreign plaintiffs,” is often central to ATS forum non conveniens litigation. However, for the purposes of forum non conveniens analysis, a non-citizen residing in the United States will not be deemed an alien.60 Moreover, the benefit to a U.S. resident plaintiff of suing in a 56

See Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1085-86 (S.D. Fla. 1997); Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736, 755-56 (S.D.N.Y. 2004). 57 See Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1084 (S.D. Fla. 1997) (reviewing cases which unsuccessfully raised claims of widespread corruption); see also Abdullahi v. Pfizer, Civ. No. 01-8118, 2005 U.S. Dist. LEXIS 16126, at *44-54 (S.D.N.Y. Aug. 9, 2005); Aguinda v. Texaco, Inc., 303 F.3d 470, 478 (2d Cir. 2002) (considering but rejecting as unsubstantiated the argument that Ecuadoran courts would be subject to corrupt influences). 58

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22 (1981).

59

Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1147-48 (C.D. Cal. 2005). 60 See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103 (2d Cir. 2000) (citation omitted): In deciding whether to dismiss a case brought by a lawful U.S. resident plaintiff for forum non conveniens, the district should consider whether, in view of the plaintiff’s U.S. residence, such a dismissal would cause plaintiff significant hardship. . . . In all of our cases in which we have deemed a plaintiff “foreign” and accorded that plaintiff’s choice of forum less deference, the plaintiffs involved were foreign corporations or foreign-national individuals residing abroad. We

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U.S. forum is not limited to suits in the district where the plaintiff resides.61 A plaintiff’s status as an alien does mean that the court provides less deference to their choice; however, it does not mean the court provides no deference. As stated in Mujica, while the choice of forum made by citizens or residents would receive more deference than that of foreign plaintiffs, “‘less deference’ does not mean ‘no deference.’ ”62 c.

Private Interest Factors63

The Wiwa court recognized that “[d]ismissal on grounds of forum non conveniens can represent a huge setback in a plaintiff’s efforts to seek reparations . . . [which] requires the plaintiff to start over in the courts of another nation, which will generally at least require the plaintiff to obtain new counsel, as well as perhaps a new residence.”64 The court’s consideration of the real barriers to commencing litigation abroad is significant for other ATS claims, particularly those against corporations. Wiwa noted the plaintiffs’ lack of “meaningful financial resources” and the substantial burden of the expense involved in bringing the litigation in another forum.65 The court found it significant that while the plaintiffs had obtained pro bono counsel to litigate the matter in the courts of the United States, “there is no guarantee that they will be able to obtain equivalent representation in England without incurring substantial have never accorded less deference to a foreign plaintiff’s choice of a United States forum where that plaintiff was a U.S. resident. 61 Id. at 103 (“The benefit for a U.S. resident plaintiff of suing in a U.S. forum is not limited to suits in the very district where the plaintiff resides, especially considering that the defendant may not be amenable to suit in the plaintiff’s district of residence.”); Guidi v. Inter-Cont’l Hotels Corp., 224 F.3d 142, 146 (2d Cir. 2000) (the “home forum” of a U.S. citizen for forum non conveniens purposes is any “United States court.”); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.23 (1981) (distinguishing between “foreign” and “American” plaintiffs in explaining why greater deference is due to the forum choice of citizens and residents). 62 Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1141 (C.D. Cal. 2005). 63 As noted above, some courts have addressed plaintiffs’ concerns for their safety as matters of private interest as opposed to challenges to the adequacy of the alternative forum. See supra note 54. 64 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105-06 (2d Cir. 2000). 65 Id. at 108 n.13.

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expenses.”66 The court also considered that “the plaintiffs and their attorneys have already made substantial investments of time, money, and energy in pursuing this litigation in the U.S. courts. Requiring the plaintiffs to replicate them in the British courts would substantially increase their burden.”67 Weighing the defendants’ claim that bringing witnesses and documentary evidence to the United States was burdensome, the Wiwa court specifically compared the vast resources of the defendants to the minimal resources of the plaintiffs.68 The defendants, corporations headquartered in England and the Netherlands, argued that England was a more appropriate forum.69 The court observed that the inconvenience of a trial in New York for non-party witnesses was not more pronounced than the inconvenience of a trial in England and that the inconvenience of shipping documents from England to the United States, and the additional cost for a Nigerian witness of flying to New York rather than London, were not “excessively burdensome, especially in view of the defendants’ vast resources.”70 d.

Public Interest Factors

In Wiwa, the Second Circuit stressed the importance of providing a forum to enforce the law of nations. The court relied in part on the fact that the TVPA, enacted in 1992, expressed “a policy favoring receptivity by [U.S.] courts to [ATS] suits.”71 While Wiwa focused on the fact that the case involved a claim of 66

Id. Id. 68 Id. at 107. 69 Id. Defendants, in their appeal, did not argue that the Netherlands was an alternative forum. 70 Id. The court also noted that there was no substantial physical evidence to be moved. Id.; see also Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1170-75 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (holding that plaintiffs’ difficulty identifying counsel willing to represent them on a contingency fee basis, their inability to compel the production of witnesses and documents, and the ability to attach defendants’ substantial assets in the United States, all militated against a forum non conveniens dismissal). 71 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 (2d Cir. 2000). The Wiwa court looked at two differences between the ATS and the wording of the TVPA: First is the change from addressing the courts’ “jurisdiction” to addressing substantive rights; second is the change from the ATCA’s description of the claim as one for “tort . . . committed in violation of the law of nations” to the new Act’s assertion of the substantive right to damages under U.S. law. This 67

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torture, the same analysis should be available in the absence of a torture claim. In weighing the public interest factors, the Second Circuit found that “the interests of the United States are involved in the eradication of torture committed under color of law in foreign nations.”72 As a result, the forum non conveniens analysis in ATS cases should assume that U.S. courts have an interest in resolving human rights claims. Sarei v. Rio Tinto, PLC, cited with approval Wiwa’s “holding that ‘the policy expressed in the TVPA favoring adjudication of claims in violation of international prohibitions on torture’ ” weighed against dismissing the action on forum on conveniens grounds.73 The case involved a variety of alleged international law violations in addition to torture,74 and the court held that weighing the Gilbert factors against dismissal was “particularly appropriate given that the case is brought under the ATCA and alleges violations of international law.”75 The decision overturning the lower court’s forum non conveniens dismissal in Wiwa was written by Judge Leval, who also wrote the opinion upholding forum non conveniens dismissal in Aguinda v. Texaco, Inc.76 Aguinda involved ATS claims for environmental injuries allegedly caused by Texaco in Peru and Equador.77 Plaintiffs argued, inter alia, that the court should interpret the ATS to express a strong U.S. policy interest in providing a forum for the adjudication of such claims.78 The court declined to pass on that question but found that even if evolution of statutory language seems to represent a more direct recognition . . . that the interests of the United States are involved in the eradication of torture committed under color of law in foreign nations. Id. 72

Id. 221 F. Supp. 2d 1116, 1175 (C.D. Cal. 2002), rev’d on other grounds, Civ. Nos. 0256256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (quoting Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 108 (2d Cir. 2000)). 74 Plaintiffs alleged that the defendants implemented and maintained a medical blockade, tortured and murdered innocent civilians, bombed civilian targets, engaged in “wanton killing and acts of cruelty,” burned homes and villages, raped women, and pillaged the island. Id. at 1121-29. 75 Id. at 1175. 76 303 F.3d 470 (2d Cir. 2002). 77 Id. at 473-74. 78 Id. at 480 n.3; cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 (2d Cir. 2000). 73

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the court agreed with plaintiffs’ ATS argument, the private and public interest factors would nonetheless require affirmation of the forum non conveniens dismissal.79 Because Wiwa and Aguinda were written by the same judge and were decided within two years of each other, it is important to consider how the Gilbert factors in Aguinda differed from those in Wiwa. Aguinda stressed those factors that would burden the court, as well as those that would create difficulty in enforcing the judgment in this toxic tort case.80 The court found that because it was a class action, it “would be onerous for a New York court to manage the translation difficulties arising from cases with 55,000 putative class members of different indigenous groups speaking various dialects.”81 In addition, the court found that “in the absence of the Ecuadorian Republic as a party, a U.S. court would be incapable of effectively ordering several aspects of the equitable relief sought in the complaints.”82 In contrast, Wiwa involved a limited number of plaintiffs and focused on damages rather than equitable relief. Given the unusual Aguinda facts, however, it is unlikely that the factors identified in that case will lead to forum non conveniens dismissals in other ATS cases. 4.

Discovery

Discovery may be permitted for the limited purpose of opposing a motion to dismiss for forum non conveniens. For example, in Wiwa v. Royal Dutch Petroleum, the court permitted discovery on the location of documents and witnesses and expert discovery on foreign law, both elements relevant to forum non conveniens.83 Other courts have refused discovery and decided the issue on the basis of affidavits. Given the deference due the district court deciding the issue of forum non conveniens, appellate courts have held that it is not an abuse of discretion to deny even limited discovery.84 79

Aguinda v. Texaco, Inc., 303 F.3d 470, 480 n.3 (2d Cir. 2002). See id. at 479-80. 81 Id. at 479. 82 Id. Also, in its description of the facts, the Second Circuit noted that by 1992, the defendant no longer had an ownership interest in the project. Id. at 473. 83 226 F.3d 88 (2d Cir. 2000). 84 See, e.g., Moskovits v. Moskovits, 150 Fed. Appx. 101, 102 (2d Cir. 2005). 80

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C. EXHAUSTION OF DOMESTIC REMEDIES The TVPA is the only one of the human rights statutes to include an explicit reference to the exhaustion of domestic remedies.85 International law generally includes a similar requirement, although the logic underlying the requirement may be more relevant to claims by one government against another than to claims by an individual injured by an international law violation.86 This section first analyzes the TVPA requirement; then it considers whether a similar exhaustion requirement applies to claims under the ATS. 1.

The Exhaustion Requirement Under the TVPA

The TVPA explicitly requires that plaintiffs exhaust “adequate and available” domestic remedies: “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”87 The House Report explains this as a means to ensure that cases are handled where the abuses took place, if that is “appropriate”: This requirement ensures that U.S. courts will not intrude into cases more appropriately handled by courts where the alleged torture or killing occurred. It will also avoid exposing U.S. courts to unnecessary 85

TVPA, § 2(b). The “state sponsors of terrorism” exception to the FSIA contains a related requirement that the foreign state defendant be afforded “a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration,” if the act occurred in the foreign state against which the claim has been brought. 28 U.S.C. § 1605(a)(7)(B)(I). 86 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 422-23 (1964) (“The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-tonation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal.”); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 703 cmt. d (1987) (“A state may pursue formal, bilateral remedies under Subsections (1) and (2) only after the individual claiming to be a victim of a human rights violation has exhausted available remedies under the domestic law of the accused state. International agreements providing remedies to individuals also generally require that the individual first exhaust domestic remedies.”) (citation omitted); see also American Convention on Human Rights, art. 46 (2) (requiring exhaustion of domestic remedies); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 26 (same). 87 TVPA § 2(b).

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burdens, and can be expected to encourage the development of meaningful remedies in other countries.88 In practice, very few claims are dismissed in response to this requirement, because only rarely is a defendant able to demonstrate that remedies are “adequate and available” in the place where the abuses took place. a.

The Defendant’s Burden to Raise and Prove the Defense

All courts to consider the exhaustion requirement have agreed that it is an affirmative defense that must be raised by the defendant. As a result, the requirement is waived if a defendant defaults or otherwise fails to raise it.89 In addition, the defendant bears the burden of showing both that such remedies exist and that they have not been exhausted by the plaintiff. The Senate Report spells out the burden of proof in detail: [T]he respondent has the burden of raising the nonexhaustion of remedies as an affirmative defense and must show that domestic remedies exist that the claimant did not use. Once the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant.90 The courts have consistently held that the plaintiff has no obligation to plead or prove exhaustion of domestic remedies unless and until the defendant has met the burden of showing that such remedies exist. In Collett v. Socialist Peoples’ Libyan Arab Jamahiriya,91 for example, the defendants argued that the TVPA 88

H.R. REP. NO. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87-88. Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005) (“[T]he exhaustion requirement pursuant to the TVPA is an affirmative defense, requiring the defendant to bear the burden of proof. This burden of proof is substantial.” (citation omitted)); Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996) (same); Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1319 (N.D. Cal. 2004) (“By defaulting, neither defendant in the cases at bar has raised the affirmative defense of non-exhaustion.”); Cabello Barrueto v. Ferna´ndez Larios, 291 F. Supp. 2d 1360, 1364 (S.D. Fla. 2003) (exhaustion requirement waived by failure to raise as an affirmative defense or in motion to dismiss before pretrial proceedings closed). 90 S. REP. NO. 102-249, at 10 (1991). 91 362 F. Supp. 2d 230 (D.D.C. 2005). 89

404 International Human Rights Litigation in U.S. Courts

claim should be dismissed because the plaintiffs had not asserted that they had exhausted remedies in Lebanon, an argument to which the plaintiffs did not even reply: Because the plaintiffs do not respond to this argument in their opposition, the court would normally hold that the plaintiffs concede this point. In this case, however, the court believes that such a holding would conflict with the goals of the TVPA. Specifically, with regard to exhaustion of remedies, the legislative history indicates that “the respondent has the burden of raising the nonexhaustion of remedies as an affirmative defense and must show that domestic remedies exist that the claimant did not use.” The defendants allude to the possibility of remedies in Lebanon but provide the court with no details or analysis concerning what those remedies would be. The plaintiffs are remiss for neglecting to respond to this argument, but the court in its discretion and in accordance with congressional intent determines that the defendants failed to meet their burden.92 b.

Inadequate Remedies

The TVPA only requires the exhaustion of remedies that are “adequate and available.” The Senate Report notes that exhaustion is not required where the “local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.”93 This same doctrine applies to the exhaustion doctrine under 92 Id. at 242-43 (citation omitted) (quoting S. REP. NO. 102-249, at 10); see also Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996) (defendant bears the burden of demonstrating exhaustion); Estate of Rodriquez v. Drummond Co., 256 F. Supp. 2d 1250, 1267-68 (N.D. Ala. 2003) (same); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1357 (S.D. Fla. 2003) (holding that plaintiffs “are entitled to a presumption that local remedies have been exhausted”); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1347 n.30 (N.D. Ga. 2002) (same); Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2002 WL 319887, at *17 (S.D.N.Y. Feb. 28, 2002) (“[D]efendants, not plaintiffs, bear the burden of demonstrating that plaintiffs have not exhausted ‘alternative and adequate’ remedies.”). 93 S. REP. NO. 102-249, at 10.

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international law94 and to the U.S. law requirement of exhaustion of state or administrative remedies.95 In most international human rights cases, it is simply not possible to obtain a remedy in the country where the abuse took place. The Senate Report recognizes this, instructing courts to apply this requirement liberally, and even to assume that the filing of a lawsuit in the United States indicates that domestic remedies are probably unavailable: [T]orture victims bring suits in the United States against the alleged torturer only as a last resort. . . . Therefore, as a general matter, the committee recognizes that in most instances the initiation of litigation under this legislation will be virtually prima facie evidence that the claimant has exhausted his or her remedies in the jurisdiction in which the torture occurred. The committee believes that courts should approach cases brought under the proposed legislation with this assumption.96 Litigation under both the TVPA and the ATS has confirmed this presumption, with no cases dismissed for failure to exhaust domestic remedies.97 In a case arising in the Sudan, the district court dismissed the defendant’s exhaustion argument in a footnote: [Defendant] Talisman also argues that exhaustion of local remedies is required under the ATCA. Whether or not the ATCA generally requires exhaustion of local remedies, the Court is aware of no case, nor does Talisman cite any, in which plaintiffs were required to exhaust local remedies in the courts of an allegedly genocidal state, where doing so would be futile and would put plaintiffs in great danger.98 94

Exhaustion is not required under international law “if it appears that such remedies would be ineffective or unreasonably prolonged.” Subcommission on Prevention of Discrimination and Protection of Minorities, Resolution 1 (XXIV), U.N. Doc. E/CN.4/ 1070, at 50-51 (1971). See generally Paula Rivka Schochet, A New Role for an Old Rule: Local Remedies and Expanding Human Rights Jurisdiction Under the Torture Victim Protection Act, 19 COLUM. HUM. RTS. L. REV. 223, 232-50 (1987). 95 See, e.g., Honig v. Doe, 484 U.S. 305, 326-27 (1988) (permitting litigants to bypass administrative proceedings where exhaustion would be futile or inadequate). 96

S. REP. NO. 102-249, at 9-10.

97

See Enahoro v. Abubakar, 408 F.3d 877, 892 (7th Cir. 2005) (“[T]o the extent that there is any doubt . . . both Congress and international tribunals have mandated that . . . doubts [concerning exhaustion are to] be resolved in favor of the plaintiffs.”). 98

Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 343 n.44 (S.D.N.Y. 2003).

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The same conclusion applies to most, if not all, TVPA cases: countries that permit torture and summary execution do not have a good record of providing remedies for those offenses. The exhaustion review is often identical to that applied to a forum non conveniens analysis, which asks first whether there is an adequate alternative forum. It may be necessary to submit expert affidavits explaining the foreign legal system and what proceedings are possible in the foreign jurisdiction.99 If the foreign state is in the process of a transition toward the rule of law, the court will consider whether the judicial system is capable of handling such a human rights lawsuit. Some examples illustrate the basis on which courts have found that no adequate remedies are available in the country where the abuse took place: Doe v. Liu Qi: In a case on behalf of Falun Gung practitioners in China, plaintiffs alleged that the government had issued an ordinance prohibiting attorneys from engaging in legal advocacy on behalf of petitioners and that those making allegations against the government could suffer “serious reprisals.” Two plaintiffs were arrested after they tried to appeal to the Beijing government on behalf of Falun Gong practitioners who had been arrested, detained and tortured.100 Estate of Rodriquez v. Drummond Co.: In a case alleging violence against union organizers: The union alleges in the First Amended Complaint that “[p]laintiffs do not have access to an independent or functioning legal system within Colombia to raise their complaints. Any effort by Plaintiffs to seek legal redress would be futile because those seeking to challenge official or paramilitary violence, including prosecutors and prominent human rights activists, are at great risk from retaliation.”101 Tachiona v. Mugabe: Plaintiffs “demonstrat[ed] that the Zimbabwean judicial system [was] sufficiently under the control of President Mugabe . . . so as to render it inaccessible to the plaintiffs.”102 99

For example, in many countries a civil lawsuit cannot be filed until after a criminal proceeding has concluded; as a result, if the criminal proceeding is stalled in the courts, a civil remedy such as that sought in an action under the ATS or TVPA is impossible. 100 349 F. Supp. 2d 1258, 1319-20 (N.D. Cal. 2004). 101 256 F. Supp. 2d 1250, 1267-68 (N.D. Ala. 2003) (alteration in original). 102 216 F. Supp. 2d 262, 275 (S.D.N.Y. 2002).

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Mehinovic v. Vuckovic: Testimony by plaintiffs’ expert and other documentation regarding the absence of any efforts to bring war criminals to justice demonstrated that remedies for plaintiffs in Republika Srpska would have been “unattainable, ineffective, inadequate, or obviously futile.”103 Wiwa v. Royal Dutch Petroleum Co.: Defendant did not demonstrate that Nigerian courts would assert jurisdiction over a suit for violations of international law brought against a non-citizen, non-resident of Nigeria. In addition, “Nigerian courts remain an uncertain forum for justice. (‘The judiciary is subject to political influence, and is hampered by corruption and inefficiency. The judicial system was incapable of providing citizens with the right to a speedy, fair trial.’).”104 Wiwa also rejected the defendant’s argument that a commission established to investigate “gross violations of human rights” provided an adequate alternative remedy. The court noted that the commission, established to promote “reconciliation,” lacked the power to remedy violations of human rights: “it may only ‘[r]ecommend measures which may be taken whether judicial, administrative, legislative or institutional.’”105 Xuncax v. Gramajo: Plaintiffs submitted affidavits demonstrating that petitioners as well as lawyers and judges involved in lawsuits against the Guatemalan security forces had been threatened and killed and that efforts to prosecute those responsible for the human rights violations were completely stalled.106 2.

The ATS and Exhaustion of Domestic Remedies

The ATS contains no explicit requirement that the plaintiff exhaust remedies in the place where the abuse took place. The Supreme Court in Sosa stated that it might consider such a requirement: [T]he European Commission argues as amicus curiae that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other fora such 103 198 F. Supp. 2d 1322, 1347 n.30 (N.D. Ga. 2002) (quoting S. REP. NO. 102-249, at 9-10 (1991)). 104 Civ. No. 96-8386, 2002 WL 319887, at *17-18 (S.D.N.Y. Feb. 28, 2002) (alteration in original) (citation omitted) (quoting U.S. DEPT. OF STATE, 2000 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, NIGERIA (2001)). 105 Id. at *18 (alteration in original) (citation omitted). 106 Xuncax v. Gramajo, 886 F. Supp. 162, 169-75 (D. Mass. 1995).

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as international claims tribunals. We would certainly consider this requirement in an appropriate case.107 Despite this language, lower courts after Sosa, including the Ninth and Eleventh Circuits, have held that they should not imply such a requirement into the statute.108 In Sarei, for example, the court offered an exhaustive review of the ATS, the TVPA, and the relationship between the two statutes, and of the policies for and against imposing a requirement of exhaustion of domestic remedies. The court started by noting that congressional intent is the key to determining whether the ATS on its face requires exhaustion. It concluded that there was insufficient evidence of such an intent: [G]iven (i) the lack of express historical or contemporary congressional intent regarding exhaustion under the ATCA, (ii) Congress’ recent pronouncement that the ATCA should remain “intact” and “unchanged” and (iii) Congress’ specific focus in the TVPA on torture and extrajudicial killing, we cannot conclude that legislative intent supports importing an exhaustion requirement into the ATCA.109 The court then considered whether it should imply such a requirement “as an exercise of judicial discretion.”110 Sarei concluded that, although there were strong arguments in favor of such a requirement, the issue was not clear enough to justify judicial imposition of an exhaustion requirement: Whether one finds the arguments for or against exhaustion more or less persuasive, however, we conclude that the balance tips against judicially engrafting an exhaustion requirement onto a statute where Congress has declined to do so, and in an area of international law where the Supreme Court has called for the exercise of judicial caution rather than innovation.111 107

Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (citation omitted). Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *1416 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822; Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005); see also Doe v. Saravia, 348 F. Supp. 2d 1112, 1158 (E.D. Cal. 2004) (reaching the same result). 109 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *18 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 110 Id. at *19-22. 111 Id. at *19. 108

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In a strong dissent, Judge Bybee argued that, by including an exhaustion requirement in the TVPA, Congress indicated an intent to incorporate one into the ATS as well.112 He also asserted that, even absent such intent, the courts should impose an exhaustion requirement on ATS claims because international law recognizes an exhaustion rule and because policy considerations favor use of domestic remedies where they are possible.113 In Jean v. Dorelien, the Eleventh Circuit rejected an exhaustion requirement with no discussion.114 The district court in Doe v. Saravia reached the same result,115 as did a pre-Sosa decision in Jama, which states: “There is nothing in the ATCA which limits its application to situations where there is no relief available under domestic law.”116 The courts reached this result despite noting that international law generally requires exhaustion of domestic remedies. Sarei, Dorelien, and Doe v. Saravia were all decided after the Supreme Court decision in Sosa. Sarei describes Sosa’s language as nothing more than a “hint[]” that the Supreme Court “might be amenable to recognizing an exhaustion requirement as implicit in the ATCA,” but recognized that the Court has not ruled on the issue.117 Saravia noted that the Supreme Court’s comment was dicta, that the Court “did not elaborate on the issue,” and that the Court “did not disavow the Second Circuit’s ruling” in Kadic v. Karadzic, which had declined to import the limiting requirements of the TVPA into the ATS.118 112

Id. at * 26-27 (Bybee, J., dissenting). Id. at * 29-34. 114 431 F.3d 776, 781 (11th Cir. 2005) (“[T]he exhaustion requirement does not apply to the ATCA.”). 115 Doe v. Saravia, 348 F. Supp. 2d 1112, 1157-58 (E.D. Cal. 2004). 116 Jama v. U.S.I.N.S., 22 F. Supp. 2d 353, 364 (D.N.J. 1998); see also Abiola v. Abubakar, 267 F. Supp. 2d 907, 910 (N.D. Ill. 2003) (TVPA’s exhaustion requirement does not apply to ATS claims). 117 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *115 (9th Cir. Apr. 12, 2007 (majority opinion), reh’g en banc granted 2007 WL 2389822. 118 Doe v. Saravia, 348 F. Supp. 2d 1112, 1157-58 (E.D. Cal. 2004) (citing Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)). 113

CHAPTER 16 THE ROLE OF THE EXECUTIVE BRANCH

The executive branch’s attitude towards human rights litigation has fluctuated since the Fila´rtiga case was filed in 1976.1 In a brief filed in Fila´rtiga, the administration of President Jimmy Carter was strongly supportive of the first modern use of the Alien Tort Statute (ATS),2 laying the groundwork for future litigation.3 President Ronald Reagan’s Justice Department sought to undermine the ATS in the Marcos cases.4 But the Reagan administration also urged the Supreme Court to deny a petition for certiorari in Tel-Oren.5 President Bill Clinton’s administration was supportive of the plaintiffs in Kadic v. Karadzic,6 and also informed the district court in Doe v. Unocal that the case raised no foreign policy concerns.7 Each of these administrations intervened infrequently, generally recognizing that application of the statute was a matter of judicial concern. By contrast, the administration of President George W. Bush launched a broad attack on the ATS, filing a flurry of submissions that opposed lawsuits on multiple grounds. The change in attitude toward the ATS reflected differing 1

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 28 U.S.C. § 1350. 3 Memorandum for the United States as Amicus Curiae, Fila ´ rtiga v. Pen˜a-Irala, 680 F.2d 876 (2d Cir. 1980) (No. 79-6090), 1980 WL 340146, available at www.ccr-ny.org/ humanrightsbook. 4 Brief for the United States as Amicus Curiae, Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989) (No. 86-2448), available at www.ccr-ny.org/humanrightsbook. 5 Brief for the United States as Amicus Curiae, Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) (No. 83-2052) (on petition for writ of certiorari), available at www.ccr-ny.org/humanrightsbook. 6 Statement of Interest of the United States, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (Nos. 94-9035, 94-9069), available at www.ccr-ny.org/humanrightsbook. 7 Statement of Interest of the United States (July 8, 1997), National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) (Civ. No. 96-6112), reprinted as Exhibit A, National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 361-62 (C.D. Cal. 1997), available at www.ccr-ny.org/humanrightsbook. 2

411

412 International Human Rights Litigation in U.S. Courts

political views and President Bush’s extreme views about executive branch powers. In addition, the nature of the claims changed: while most early ATS cases involved suits against individual foreigners, cases filed in the late-1990s and the early 21st century increasingly targeted politically influential defendants, including multinational corporations, foreign governments and current foreign government officials, and U.S. government defendants.8 The Bush administration aggressively opposed most efforts to hold these defendants accountable through the ATS. In addition, as detailed in Chapter 5, the administrations of both President Clinton and President George W. Bush opposed collection of damages awarded pursuant to the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA),9 arguing that it constituted a violation of international norms governing state sovereignty.10 On the other hand, the second Bush administration intervened in favor of plaintiffs in claims filed under the Anti-Terrorism Act,11 as discussed in Chapter 6. This chapter begins in Section A with an examination of the various means by which the executive branch can express its views to the courts: suggestions of immunity, statements of interest, letters to the court, declarations, or amicus curiae briefs. Section B discusses the means by which litigants can attempt to solicit, block, or influence the content of administration submissions. Section C examines the varying degrees of deference the courts afford to executive branch statements on different issues. A final section summarizes the views that the various administrations have expressed toward ATS litigation. The process described here applies to human rights claims litigated under any statutory or common law authorization, although the specific issues addressed by the executive branch will vary depending on the nature of the claim. A. FORMS OF EXECUTIVE SUBMISSIONS The Department of Justice is authorized by statute to inform the court of U.S. interests in any lawsuit pending in any U.S. court, pursuant to 28 U.S.C. Section 517: [A]ny officer of the Department of Justice may be sent by the Attorney General to any . . . district in the United States to attend to the 8

See Chapters 1, 5, 10-12. 28 U.S.C. § 1605(a)(7). 10 See Chapter 5. 11 18 U.S.C. §§ 2331-2339D. 9

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interests of the United States in a suit pending in a court in the United States. This statutory power is limited to the Department of Justice; as a result, when the Department of State chooses to make a submission to a court, it often—but not always—does so by forwarding its views to the Department of Justice for filing with the court.12 The executive branch’s views can be expressed in various forms, each described below. There is no publicly available explanation for why the executive branch chooses one form over another. However, where the executive submission is less an expression of policy and more focused on legal analysis, the executive is more likely to submit an amicus brief. As discussed in Section C, the degree of deference afforded to the executive branch’s views generally turns on the substantive issues addressed, not the form of the submission. Suggestions of Immunity: When the executive branch concludes that a defendant is protected by head-of-state or diplomatic immunity, the Department of Justice generally files a suggestion of immunity. As discussed below, the courts have held repeatedly that these two immunity decisions are constitutionally assigned to the executive branch. Suggestions of head-of-state or diplomatic immunity, therefore, are generally binding on the courts.13 Statements of Interest and Letters: A Statement of Interest is an expression by the executive of the position of the United States on a matter pending before the judiciary. Such views are also expressed through less formal letters to the 12

In a submission in Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980), the Department of Justice noted that the Second Circuit had asked the Department of State for its views. Memorandum for the United States as Amicus Curiae at 1, Fila´rtiga v. Pen˜a-Irala, 680 F.2d 876 (2d Cir. 1980) (No. 79-6090), 1980 WL 340146, available at www.ccr.ny-org/humanrightsbook. The resulting amicus brief stated: Under 28 U.S.C. [Section] 516, the conduct of litigation in which the United States or an agency is interested is reserved to the Department of Justice. For that reason, the Department of Justice is filing this memorandum, developed jointly by the Department of Justice and the Department of State. Id. at 1 n.1. See also the Statement of Interest of the United States in Doe v. Constant, in which the U.S. Attorney sent the court a letter written by the State Department Legal Advisor in response to a request for the government’s views about the pending litigation. Statement of Interest of the United States at 1, Doe v. Constant, No. 04-10108 (S.D.N.Y. Sept. 28, 2006), available at www.ccr-ny.org/humanrightsbook. 13 See Section C. By contrast, the sovereign immunity of foreign states is controlled by the Foreign Sovereign Immunities Act (FSIA), a statute which is interpreted and applied by the courts.

414 International Human Rights Litigation in U.S. Courts

court. The executive branch has not publicly explained the distinction between the two or the reasons why it uses one form rather than the other. The administration does, at times, use the Statement of Interest format to argue a legal position. For example, plaintiffs in In re Agent Orange Product Liability Litigation alleged that they had been injured by a herbicide and defoliant, Agent Orange, manufactured by the defendants and used by the U.S. military during the Vietnam War.14 The executive branch Statement of Interest argued that the claims should be dismissed for reasons ranging from separation of powers and the political question doctrine to the proper interpretation of the ATS.15 Similarly, the executive branch filed a Statement of Interest in Matar v. Dichter that included detailed legal analysis.16 The case involved ATS claims against an Israeli general, filed by residents of Gaza who were injured or killed during the bombing of an apartment house where a suspected terrorist was believed to be staying. The Statement of Interest filed by both the Legal Advisor to the State Department and an Assistant Attorney General addressed issues of sovereign immunity and the application of the Torture Victim Protection Act (TVPA); it argued that civilian deaths resulting from disproportionate use of force were not actionable under the ATS or the TVPA. Declarations: The executive branch occasionally submits a declaration in which a government official attests to facts within his or her personal knowledge. In Arias v. DynCorp, for example, the defendant submitted a declaration signed by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, providing testimony concerning the relationship between the litigation and the “war on drugs.”17 Amicus briefs: When the executive branch chooses to submit its views about the legal issues pending before a court, it generally does so through an amicus 14

373 F. Supp. 2d 7, 19-23 (E.D.N.Y. 2005). See Statement of Interest of the United States, In re Agent Orange Product Liability Litig., 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (No. 04-400), available at www.ccr-ny.org/ humanrightsbook. 16 See Statement of Interest of the United States of America, Matar v. Dichter, Civ. No. 05-10270 (S.D.N.Y. May 2, 2007), available at www.ccr-ny.org/humanrightsbook. 17 See Declaration of Rand Beers, Assistant Secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs, Regarding Potential Impact of Arias Litigation on the United States National Security and Foreign Policy Interests, Arias v. DynCorp, Civ. No. 01-01908 (D.D.C. Nov. 27, 2001), available at www.ccrny.org/humanrightsbook. 15

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415

brief. Such briefs have addressed issues of statutory construction, treaty interpretation, or the proper application of immunity doctrines.18 B. SOLICITING, OPPOSING, AND INFLUENCING EXECUTIVE BRANCH SUBMISSIONS Depending on the anticipated stance of the U.S. executive branch, a party may wish to consider approaching administration officials directly; asking that the court request the executive branch’s views; opposing such a request; or challenging the legal basis and factual arguments of a submission after it has been filed with the court. Due to the increasing frequency with which the administration of President George W. Bush filed submissions supporting defendants in human rights litigation, defendants often urge courts to request the views of the U.S. Department of State. However, not all executive submissions have favored the defendant. For example, during the Clinton administration, the Second Circuit asked the executive branch whether it wished to submit its views in Kadic v. Karadzic.19 In a subsequent Statement of Interest, signed by the Solicitor General and the State Department’s Legal Advisor, the executive recognized that the political question doctrine did not apply, stating: “Although there might be instances in which federal courts are asked to issue rulings under the Alien Tort Statute or the Torture Victim Protection Act that might raise a political question, this is not one of them.”20 1.

Requests for Executive Branch Submissions

The executive branch may submit its views in a pending case on its own initiative or in response to a judicial request. That judicial request, in turn, may 18

See, e.g., Supplemental Brief for the United States as Amicus Curiae, Doe v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (Civ. Nos. 00-56603, 00-56628), available at www.ccr-ny.org/humanrightsbook; Brief for the United States of America as Amicus Curiae, Doe v. Unocal, 403 F.3d 708 (9th Cir. 2005) (Civ. Nos. 00-56603, 00-56628), available at www.ccr-ny.org/humanrightsbook. 19 70 F.3d 232, 250 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) (noting that the court “wrote to the Attorney General to inquire whether the United States wished to offer any further views concerning any of the issues raised.”). 20 Id. at 250 (quoting Statement of Interest of the United States, at 3, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (Civ. Nos. 94-9035, 94-9069), available at www.ccr-ny.org/humanrightsbook).

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come at the initiative of the court or after one or both parties request that the court seek the government’s views.21 There generally is no public record of whether either party has contacted the State Department, the Justice Department, or any other executive branch official in an effort to trigger or block a submission. It is clear to participants, however, that behind the scenes lobbying by the litigants and their allies has impacted decisions to file submissions in some cases. At times, the State Department Legal Advisor has been willing to meet with litigants to hear their positions before the government submits its views to the court. There appears to be no established practice in this regard, and it may vary with each Legal Advisor. The State Department submitted Statements of Interest in two cases involving corporate defendants in which there was no formal request from the courts, Presbyterian Church of Sudan v. Talisman Energy, Inc.22 and In re Agent Orange Product Liability Litigation.23 The State Department has also filed Statements of Interest in a number of cases arising out of World War II, urging dismissal of the claims in deference to agreements with the governments of France, Germany, and Austria that established compensation funds.24 Some of those agreements were contingent upon dismissal of lawsuits based on the same events.25 In Doe v. Liu Qi, the court requested the views of the Department of State after the plaintiffs filed a motion for default judgment.26 In response, the Department of Justice first transmitted to the court a letter from the government of the People’s Republic of China objecting to the litigation.27 Two months later, 21 When the court requests the views of the executive branch, it may not be clear from the public record whether one of the parties asked the court to solicit the executive branch’s views or whether the court did so on its own initiative. 22 See Statement of Interest of the United States of America, Presbyterian Church of Sudan v. Talisman Energy Inc., Civ. No. 01-9882 (S.D.N.Y. Mar. 15, 2005), available at www.ccr-ny.org/humanrightsbook. 23 See Statement of Interest of the United States, In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (No. 04-400), available at www.ccr-ny.org/ humanrightsbook. 24 See, e.g., Whiteman v Dorotheum GMBH & Co., 431 F.3d 57, 59 (2d Cir. 2005). 25 See id. at 62-63, 67-68. 26 349 F. Supp. 2d 1258, 1264 (N.D. Cal. 2004). 27 Statement by the Chinese Government on Anonymous Persons v. Liu Qi Case, attached to Notice of Filing of Statement by the Chinese Government, Doe v. Liu Qi, Civ. No. 02-0672 (July 9, 2002), available at www.ccr-ny.org/humanrightsbook.

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the Department of State sent the Department of Justice a separate letter responding to the court’s request, which the Department of Justice then filed with the court.28 The State Department letter urged against adjudication in part because “[s]uch litigation can serve to detract from, or interfere with, the Executive Branch’s conduct of foreign policy.”29 Many of the submissions filed by the administration of George W. Bush were solicited by a court at the request of the defendants. For example, in Mujica v. Occidental Petroleum Corp., at the urging of the defendant, the district court requested the State Department’s views regarding potential foreign policy implications.30 The State Department first sent a letter to the court indicating that it did not yet have a position on the case.31 However, after the Supreme Court’s decision in Sosa,32 the State Department submitted a second letter asserting that the litigation would have “an adverse impact on the foreign policy interests of the United States.”33 The State Department attached a letter from the Colombian government indicating that it also opposed the litigation.34 2.

Challenging Requests for Executive Branch Submissions

Where the court has been asked to seek the views of the executive branch, or has indicated an interest in doing so, two approaches may convince the judge to refrain from even asking. 28 Letter from William H. Taft, IV, Legal Advisor, Department of State, to Robert D. McCallum, Assistant Attorney General (Sept. 25, 2002), attached as Exhibit A to Statement of Interest of the United States, Doe v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) (No. 02-0672), available at www.ccr-ny.org/humanrightsbook. 29 Id. at 8. 30 381 F. Supp. 2d 1134, 1139 (C.D. Cal. 2005) (appeal pending). 31 Id.; see Letter from William H. Taft, Legal Advisor, Dept. of State, Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134 (C.D. Cal. 2005) (No. 03-2860) [hereinafter Taft Mujica Letter] (describing an earlier letter in which Acting Legal Advisor James H. Thessin stated that the “Department of State would be unable to respond to the court’s questions by the requested deadline but might be able to do so later, when the facts and legal arguments became clearer and more focused.”), available at www.ccr-ny.org/humanrightsbook. 32 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 33 Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1140 (C.D. Cal. 2005); see Taft Mujica Letter, supra note 31, at 1. 34 Id.

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a.

Respecting Executive Branch Inaction

Making a public request for the views of the executive branch may put unwanted pressure on the government. In Banco Nacional de Cuba v. Sabbatino, the Supreme Court explained: “Often the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation.”35 Such a statement “might be inopportune diplomatically” and might trigger “[a]dverse domestic consequences.”36 In Patrickson v. Dole Food Co., the court noted that “[t]o the extent that the United States government is concerned about potential adverse foreign relations consequences from the resolution of these lawsuits, the Executive Branch possesses the competence, capacity and incentive to make its view known . . . to this Court.”37 Thus, separation of powers concerns counsel against asking the State Department for its views when the department has chosen to remain silent. As explained by the Second Circuit: “Since silence . . . may be highly desirable, it would not be wise for the courts unnecessarily to force the Government’s hand.”38 Moreover, the silence of the executive on the impact of a case that has been in progress for a number of years “suggest[s] that the foreign policy of the United States . . . is not seriously threatened.”39 In Kiobel v. Royal Dutch Petroleum Co., the defendants requested that the court “ask the U.S. Government what impact it believes adjudicating plaintiffs’ claims would have on U.S. foreign relations.”40 Noting that the executive branch had been informed of the pending case by a Nigerian government official, the magistrate judge recommended that the court decline to seek the views of the State Department, because the U.S. government “has not sought to intervene in 35

376 U.S. 398, 436 (1963). Id. 37 251 F.3d 795, 803 n.7 (9th Cir. 2001), aff’d in part, 538 U.S. 468 (2003) (quoting In re Tobacco/Governmental Health Care Costs Litig., 100 F. Supp. 2d 31, 38 (D.D.C. 2000)); accord Gross v. German Found. Indus. Initiative, 456 F.3d 363, 384-85 (3d Cir. 2006). 38 Calderone v. Nariera Vacuba S/A, 325 F.2d 76, 77 (2d Cir. 1963), modified on other grounds, 328 F.2d 578 (2d Cir. 1964) (per curiam). 39 Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 195-96 (1983); accord Cruz v. United States, 387 F. Supp. 2d 1057, 1077 (N.D. Cal. 2005). 40 Reply Memorandum of Law in Support of Defendants’ Motion to Dismiss, at 2 (May 5, 2003), motion denied by Kiobel v. Royal Dutch Petroleum Co., 2006 WL 39146 (S.D.N.Y. Jan. 3, 2006) (Civ. No. 02-7618), available at www.ccr-ny.org/humanrightsbook. 36

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419

this action nor has it informally expressed any opinion concerning the impact, if any, adjudication of this action will have on” U.S. foreign relations.41 Sometimes the State Department indicates that it does not have an opinion. In response to a court request for a statement on why it had not intervened in a series of cases against the Drummond Corporation alleging complicity in human rights abuses in Colombia, the State Department responded: The Department of State was aware of these cases. The Department of State does not routinely involve itself in district court cases to which the United States is not a party. Given the large number of such cases and the variety of considerations that affect whether the Department becomes involved in such cases, no inference should be drawn about the Department’s views regarding a particular case in which it has not participated, or as to questions which it has not addressed.42 The letter proceeds to note that “[t]he Department of State does not have an opinion at this time as to whether continued adjudication of this matter will have an adverse impact on the foreign policy interests of the United States.”43 b.

Premature Requests

Litigants may also argue that the defendant’s request is premature and should be delayed until discovery has sufficiently developed factual and legal issues relevant to the executive branch. For example, in Bowoto v. ChevronTexaco Corp., the court denied the defendant’s motion to request the State Department’s views on the foreign relations implications of the case, finding that soliciting the views of the State Department would be premature and unhelpful.44 When the defendants submitted that motion, the litigants in Chevron 41

Kiobel v. Royal Dutch Petroleum Co., Civ. No. 02-7618, at 23 (S.D.N.Y. Mar. 11, 2004) (Report and Recommendation of U.S. Magistrate Judge Pitman to U.S.D.J. Wood) (denying Defendants’ Motion to Dismiss), adopted by Judge Wood, 2006 WL 39146 (S.D.N.Y. Jan 3, 2006). See also Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006) (order granting in part defendants’ second motion to dismiss). 42 Letter from John B. Bellinger, III, Legal Advisor, Dept. of State, to Jeffrey S. Bucholtz, Principal Deputy Attorney General of the Civil Division of the U.S. Department of Justice, at 2, July 14, 2006, attached as Exhibit A to Statement of Interest of the United States, Romero v. Drummond Co., Inc., Civ. No. 03-0575 (N.D. Ala. Aug. 2, 2006), available at www.ccr-ny.org/humanrightsbook. 43 Id. 44 Civ. No. 99-2506, at 3-5 (N.D. Cal. July 30, 2004) (Order Denying Motion for Court to Request Views), available at www.ccr-ny.org/humanrightsbook.

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had not yet started discovery on the applicability of the act of state doctrine or other issues of possible concern to the executive branch.45 However, in a companion case brought under California’s Fair Business Practices law, the state court judge did solicit the opinion of the State Department.46 In Presbyterian Church of Sudan v. Talisman Energy, Inc., the judge flatly denied the defendant’s request that the court seek the State Department’s opinion on whether adjudication of the case would negatively impact U.S. foreign policy.47 As with the rejected motion in Chevron, the Talisman defendant moved to involve the executive branch while a motion to dismiss was still pending and before discovery on substantive issues.48 The State Department eventually did file a Statement of Interest in that case without invitation of the court; notably, it waited several years for the factual record and legal issues to be developed before intervening.49 3.

Challenging the Content of Submission

Once the executive submits its views to the court, the parties may request the opportunity to respond. This response may take the form of a brief that challenges the factual or legal basis for the views expressed in the government’s submission, discusses the appropriate weight to be given to those views, and/or analyzes their relevance to the issues raised by the case. It may also include an expert declaration concerning either the factual or legal assertions contained in the submission. Courts have granted requests to respond to both the legal arguments and the factual claims underlying the submission.50 Litigants should 45

Id.

46

Letter from Judge Kevin M. McCarthy to John B. Bellinger, Office of the Legal Advisor, Dep’t of State, Bowoto v. Chevron Corp., Civ. No. 03-417580 (Cal. Super. Ct. Jan. 2, 2007), available at www.ccr-ny.org/humanrightsbook. 47 Civ. No. 01-9882 (S.D.N.Y. Sept. 4, 2002) (summary rejection of defendant’s request to solicit the views of the State Department). 48

The Talisman case was filed in November 2001. Defendants filed their first motion to dismiss the case in May 2002; it was denied in March 2003. The court denied the request to solicit the views of the State Department in September 2002, while that motion to dismiss was pending. Fact discovery began in late 2002 and continued until April 18, 2005. The U.S. Statement of Interest was filed in March 2005. 49 Statement of Interest of the United States (Mar. 15, 2005), Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846 (S.D.N.Y. Aug. 30, 2005) (Civ. No. 01-9882), available at www.ccr-ny.org/humanrightsbook. 50 See, e.g., Wash. Post Co. v. U.S. Dep’t of State, 840 F.2d 26, 36-37 (D.C. Cir. 1988), vacated, 898 F.2d 793 (D.C. Cir. 1990); 767 Third Ave. Assocs. v. Permanent Mission of the Republic of Zaire to the U.N., 787 F. Supp. 389 (S.D.N.Y. 1992).

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examine the text of the submission carefully to ensure that neither the opposing party nor the court read more into it than the government has asserted. The court may refuse to rely on the factual assertions contained in the executive submission in the absence of evidence supporting the assertions. In Sarei v. Rio Tinto, PLC, for example, the government’s submission opined that the litigation “would risk a potentially serious adverse impact on the peace process” between the foreign government and rebels51 ; it attached a statement from the government of Papua New Guinea stating that the case “‘has potentially very serious social, economic, legal, political and security implications’ . . . including adverse effects on [Papua New Guinea]’s international relations, ‘especially its relations with the United States.’”52 The Sarei plaintiffs submitted evidence contesting the assertions of the executive, including declarations from participants in the peace process stating that the process would not be harmed by the litigation, and, in fact, would be strengthened.53 In addition, the plaintiffs asked the State Department to “clarify its submission to the court,” which the Department declined to do.54 The district court held that it could not take judicial notice of the facts underlying the U.S. position.55 On appeal the Ninth Circuit pointed to the evidence proffered by the plaintiffs but did not rely on it. Instead, the court indicated that the factual disputes between the plaintiffs and the State Department “illustrate why it is inappropriate to give the [Statement of Interest] final and conclusive weight as establishing a political question.”56 Courts rarely permit discovery into the process by which a government submission was prepared. In Arias v. DynCorp, however, a declaration by an Assistant Secretary of State was submitted as an attachment to the defendant’s 51 2007 WL 1079901 at *1, Civ. Nos. 02-56256, 02-56390 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (quoting Letter from William H. Taft, IV, Legal Advisor, Department of State, to Robert D. McCallum, Assistant Attorney General (Oct. 31, 2001) [hereinafter Sarei Taft Letter], attached as Exhibit A to Statement of Interest of the United States, Sarei v. Rio Tinto, PLC, available at www.ccr-ny/ humanrightsbook). 52 Id. at *3 (quoting Sarei Taft Letter (quoting statement from the government of Papua New Guinea)). 53 Id. 54 Id. 55 Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d at 1182 (C.D. Cal. 2002). 56 Sarei v. Rio Tinto, PLC, 2007 WL 1079901, at *42 n.15, Civ. Nos. 02-56256, 0256390 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822.

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motion to dismiss, and plaintiffs were permitted to depose the signing official. The deposition revealed that the declaration had been initially drafted by the defendants.57 Executive submissions can also be challenged if the internal logic of the position does not support the relief sought. For example, in Presbyterian Church of Sudan v. Talisman Energy, Inc., the State Department filed a Statement of Interest that included as an attachment a Diplomatic Note from the government of Canada, the home state of the defendant corporation.58 The court examined Canada’s diplomatic note and concluded that it did not address the issues raised by the lawsuit: While this Court may not question either the accuracy of the description of Canada’s foreign policy in its Letter, or the wisdom and effectiveness of that foreign policy, it remains appropriate to consider the degree to which that articulated foreign policy applies to this litigation. . . . While there is no requirement that a government’s letter must support its position with detailed argument, where the contents of the letter suggest a lack of understanding about the nature of the claims in the ATS litigation, a court may take that into account in assessing the concerns expressed in the letter.59 The court then denied the motion to dismiss, concluding that there was no showing that the pending litigation would interfere with Canada’s foreign policy. As reflected in these examples, it is possible to challenge the content of an adverse executive submission and refute its contentions. The key factor determining the impact of such submissions, however, is generally the degree of deference afforded to the views of the executive branch, the topic of following section. 57

Deposition of Rand Beers, Feb. 27, 2003, Arias v. DynCorp, Case No. 01-01908 (D.D.C. complaint filed Sept. 2001). The text of the deposition is available at www.ccrny.org/humanrightsbook. 58 See Letter of William H. Taft, IV, Legal Advisor, Dep’t of State, to Daniel Meron, Principal Deputy Assistant Attorney General, Civil Division, Dep’t of Justice, attached as Exhibit A to Statement of Interest of the United States of America, Presbyterian Church of Sudan v. Talisman Energy Inc., 2005 WL 2082846, Civ. No. 01-9882 (S.D.N.Y. Aug. 30, 2005), available at www.ccr-ny.org/humanrightsbook. The Diplomatic Note from the Government of Canada was attached to the Taft letter. 59 Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846 at *6, Civ. No. 01-9882 (S.D.N.Y. Aug. 30, 2005).

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C. THE DEFERENCE DUE TO EXECUTIVE BRANCH VIEWS The Supreme Court has long held that the Constitution allocates primary control over foreign affairs to the executive and legislative branches of the federal government.60 Nevertheless, the judiciary is constitutionally obligated to interpret the Constitution and statutes and to decide cases that fall within its jurisdiction, even if they touch upon foreign affairs.61 The courts have recognized that some deference to the executive branch is appropriate, but that excessive deference would interfere with the exercise of their constitutionally mandated powers. As Justice Douglas stated in a concurring opinion, unquestioning deference to executive branch complaints about the foreign policy implications of litigation would render the court “a mere errand boy for the Executive Branch which may choose to pick some people’s chestnuts from the fire, but not others.”62 In that case, which involved the justiciability of a claim involving Cuba at the height of the Cold War, six of the Supreme Court justices specifically rejected the administration’s assertion that the judiciary should accept the executive branch’s views as controlling.63 Justice Powell stated: “I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s permission before invoking its jurisdiction. Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with that very doctrine.”64 Justice Brennan recognized that the executive branch has limited authority over the interpretation of the constitutionally assigned judicial power, observing that “[t]he Executive Branch . . . cannot by 60 See, e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (stating that “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the executive and legislative—‘political’—departments of the government.”). 61 See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (“Despite the broad statement in Oetjen that ‘The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative . . . departments’ ” (quoting Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)), “it cannot of course be thought that ‘every case or controversy which touches foreign relations lies beyond judicial cognizance’ ” (quoting Baker v. Carr, 369 U.S. 186, 211 (1962))). 62 First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring) (internal quotation marks omitted). 63 See id. at 790 (Brennan, J., dissenting). 64 Id. at 773 (Powell, J., concurring).

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simple stipulation change a political question into a cognizable claim.”65 Noting that six members of the Court shared his view on this point, he added: “[T]he representations of the Department of State are entitled to weight for the light they shed on the permutation and combination of factors underlying the act of state doctrine. But they cannot be determinative.”66 When the executive branch expresses its views to the court, a key issue immediately becomes the degree of deference the court will afford to those views. Litigating this issue requires first distinguishing between issues constitutionally assigned to one branch or the other; and, second, pushing the court to recognize that even in an area in which deference is appropriate, it is only the “well-reasoned” views of the executive branch that are entitled to such deference. Decisions as to Which the Executive Views Are Controlling: Executive branch “suggestions of immunity” for heads of state and diplomats are controlling.67 This extreme deference reflects the Constitution’s assignment to the president of the power to “receive Ambassadors and other public Ministers,”68 which is understood to include the power to recognize both foreign governments and those who represent them.69 65

Id. at 788-89 (Brennan, J., dissenting). Id. at 790. 67 See, e.g., Ex parte Republic of Peru, 318 U.S. 578, 588 (1943) (holding that if a suggestion of immunity is filed, it is the “court’s duty” to surrender jurisdiction); Wei Ye v. Jiang Zemin, 383 F.3d 620, 627 (7th Cir. 2004) (“[T]he immunity of foreign leaders remains the province of the Executive Branch.”); Doe v. State of Israel, 400 F. Supp. 2d 86, 111 (D.D.C. 2005) (“When, as here, the Executive has filed a Suggestion of Immunity as to a recognized head of a foreign state, the jurisdiction of the Judicial Branch immediately ceases.”); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 24 (D.D.C. 1998) (“[W]hether an individual qualifies as a head of state is a decision committed exclusively to the political branches and the judiciary is bound by their determinations.”); Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) (dismissing based on head of state immunity after executive branch filed suggestion of immunity). But see Republic of Phillipines by the Cent. Bank of Phillipines v. Marcos, 665 F. Supp. 793, 797-99 (N.D. Cal. 1987) (holding that foreign official was entitled to diplomatic immunity but not the head-of-state immunity advocated in the suggestion of immunity). 68 U.S. CONST. art. II, § 3. 69 LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 43 (2d ed. 1996) (“It is no longer questioned that the President does not merely perform the ceremony of receiving foreign ambassadors but also determines whether the United States should recognize or refuse to recognize a foreign government.”). 66

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Substantial Deference: When the president acts pursuant to constitutionally authorized lawmaking powers, as in the adoption of executive agreements, the courts afford substantial deference to executive branch views. In Whiteman v. Dorotheum GMBH & Co. KB, for example, the administration argued that litigation would prevent implementation of a settlement process for Holocaust claims that the executive branch had established by means of executive agreements with other states.70 A divided panel of the Second Circuit concluded that the lawsuit presented a non-justiciable political question because it would be impossible for the court to undertake “independent resolution” of the claims “without expressing lack of the respect due” to the executive branch.71 The court’s reasoning was quite particularized, holding that in this case, it should defer to “a statement of foreign policy interests of the United States urging dismissal of claims against a foreign sovereign” because the executive branch had entered “executive agreements respecting resolution of those claims”; those agreements established “an alternative international forum for considering the claims”; and the litigation would “substantially undermine[]” the U.S. foreign policy advanced by the executive agreements.72 Respectful Deference to Well-Reasoned Views: If an issue does not fall within one of these narrow areas of executive control, the courts should treat the executive branch’s well-reasoned views with respect but should not accept them as controlling.73 Even where the courts ultimately follow the administration’s 70

431 F.3d 57 (2d Cir. 2005). Id. at 70 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). 72 Id. at 59-60. In dissent, Judge Straub criticized the majority’s views as “an unwarranted and troubling expansion of the non-justiciability doctrine, which should only apply where a court, in exercising jurisdiction, would truly be exceeding its authority or contradicting foreign policy decisions by the Executive.” Id. at 75-76 (Straub, J., dissenting). Judge Straub reasoned that since the executive agreement only guaranteed that the executive branch would advocate dismissal, not that it would conclusively extinguish the claims, a judicial decision to allow the case to proceed would not contradict the executive branch’s agreements. Id. at 76-81. 73 See, e.g., Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1236 (11th Cir. 2004) (“A statement of national interest alone . . . does not take the present litigation outside of the competence of the judiciary.”); id. at 1236 n.12 (“[T]he judiciary is not interfering with foreign relations or showing a lack of respect to the executive when it interprets an international agreement and follows its terms.”); Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995) (“[A]n assertion of the political question doctrine by the Executive Branch [would be] entitled to respectful consideration, [but] would not necessarily preclude adjudication.”), cert. denied, 518 U.S. 1005 (1996); In Re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 380 (D.N.J. 2001) (noting 71

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views, they consider whether those views are logical and factually supported.74 In American Insurance Association v. Garamendi, for example, the Court reviewed executive branch evidence of national policy governing resolution of Holocaust-era insurance claims and concluded that “[t]he approach taken [by the executive branch] serves to resolve . . . several competing matters of national concern” at issue in the dispute.75 In Regan v. Wald, the Supreme Court upheld a ban on spending money in Cuba based upon the executive branch’s statement that permitting U.S. citizens to provide foreign currency to the Cuban government would undermine U.S. foreign policy.76 While noting that the administration’s views were entitled to deference, the Court nevertheless reviewed the underlying facts and concluded that the restrictions were justified based on “the evidence presented to both the District Court and the Court of Appeals.”77 Executive branch views are less likely to be afforded deference that a “Statement of Interest is non-binding on the Court”). See also Barclays Bank PLC v. Franchise Tax Bd. of California, 512 U.S. 298, 329-30 (1994) (“Executive Branch actions—press releases, letters, and amicus briefs . . . that express federal policy but lack the force of law” cannot render a state law unconstitutional under the Foreign Commerce Clause). See also Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004) (stating that with respect to foreign sovereign immunity, “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled deference as the considered judgment of the Executive on a particular question of foreign policy”) (footnote omitted); Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (noting that “there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy”). 74

See, e.g., City of N.Y. v. Permanent Mission of India to the U.N., 446 F.3d 365, 377 n.17 (2d Cir. 2006) (“[W]e find none of the cited issues, presented in a largely vague and speculative manner, potentially severe enough or raised with the level of specificity required to justify presently a dismissal on foreign policy grounds.”). 75

539 U.S. 396, 422 (2003). 468 U.S. 222 (1984). 77 Id. at 243. Lower court opinions in cases involving administration claims of non-justiciability reflect the need to evaluate executive branch’s allegations rather than to take them as controlling per se. See, e.g., Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992), cert. denied, 508 U.S. 960 (1993). Similarly, the act of state doctrine “demands a case-bycase analysis of the extent to which in the context of a particular dispute separation of powers concerns are implicated[,] . . . always . . . tempered by common sense.” Bigio v. Coca-Cola Co., 239 F.3d 440, 452 (2d Cir. 2000) (alteration in original) (quoting Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 (2d Cir. 76

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when they have changed over time: In Regan v. Wald, for instance, the Court noted that the same views had been maintained for decades under successive U.S. presidencies.78 Moreover, the courts do not defer to executive branch positions taken as a party in the course of litigation.79 Interpretations of Domestic and International Law: The courts, not the executive branch, are constitutionally assigned the task of interpreting statutes and rules of law. In an often-cited statement of this rule, the Supreme Court in Japan Whaling noted that the judiciary is constitutionally required to interpret statutes and treaties even where they touch upon foreign affairs: [T]he courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. . . . We are cognizant of the interplay between these [statutes] and the 1985)). In general, despite the deference owed to executive branch statements about foreign policy, factual allegations will not be credited unless credible and supported by the available evidence. Wash. Post Co. v. U.S. Dep’t of State, 840 F.2d 26, 36-37 (D.C. Cir. 1988), vacated, 898 F.2d 793 (D.C. Cir. 1990). Several lower courts have reiterated the conclusion that the views of the executive branch are entitled to “respectful consideration” but cannot be given conclusive weight. Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995); Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 n.2 (2d Cir. 1985) (decision to invoke the act of state doctrine “may be guided but not controlled by the position, if any, articulated by the executive as to the applicability vel non of the doctrine to a particular set of facts. Whether to invoke the act of state doctrine is ultimately and always a judicial question.”); Belgrade v. Sidex Int’l Furniture Corp., 2 F. Supp. 2d 407, 416 (S.D.N.Y. 1998) (“[T]he views of the executive branch often will have an important bearing on a court’s determination, especially where the concern is possible conflict with a coordinate branch of government, [but] they are not conclusive.”). 78 The Court noted that the restrictions were imposed during the administration of President Kennedy and retained through the administration of both President Carter and President Reagan. Regan v. Wald, 468 U.S. 222, 243 (1984); see also City of N.Y. v. Permanent Mission of India to the U.N., 446 F.3d 365, 377 n.17 (2d Cir. 2006) (“It is particularly inappropriate to defer to the executive branch’s legal views here because its position as to the proper scope of the [statute] is inconsistent with its previous interpretation.”). 79 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988) (“We have never applied the principle of [deference] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice. . . . Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.” (citations omitted)).

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conduct of this Nation’s foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.80 As the Court stated more recently, since issues of statutory interpretation are “well within the province of the Judiciary,”81 the views of the executive branch “merit no special deference.”82 Thus, interpretation of the FSIA is a “pure question of statutory construction . . . well within the province of the Judiciary.”83 The Supreme Court’s decision in Sosa v. Alvarez-Machain84 recognized that the courts are charged with statutory interpretation—and gave no particular consideration to the views of the executive branch. The Bush administration argued in Sosa that interpreting the ATS as permitting modern human rights litigation would infringe upon executive branch authority for foreign affairs.85 The Sosa Court rejected that concern, without even referring to the government’s views. That is, the Court in Sosa did not even mention the views of the executive about the proper interpretation of the ATS, much less defer to those views. Interpretation of international law is also a task for the judiciary, as the Court held in Hamdi v. Rumsfeld.86 Hamdi involved the detention of an alleged enemy combatant during military operations in Afghanistan. The government argued that President Bush’s determination that certain detainees do not qualify as prisoners of war was conclusive and removed any doubt that would trigger application of the Geneva Conventions.87 Nevertheless, the Court looked to the customary laws of war and determined that Hamdi’s detention could not last 80

Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986). Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004) (interpreting the FSIA) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)). 82 Id. 83 Id. at 679 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)). 84 542 U.S. 692 (2004). 85 Brief for the United States as Respondent Supporting Petitioner, Sosa v. AlvarezMachain, 542 U.S. 692 (2004) (No. 03-339), 2004 WL 182581, available at www.ccrny.org/humanrightsbook. 86 542 U.S. 507 (2004) (plurality opinion). 87 Id. at 540 (Souter, J., concurring). 81

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longer than active hostilities.88 Thus, Hamdi stands for the principle that it is the proper role of the court to determine the content of international law, both treaty law and customary law. These modern Supreme Court decisions are consistent with prior case law. In Paquete Habana,89 the dissent argued for a rule of deference to the executive: In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.90 However, the majority rejected this approach, even in the context of the executive’s war powers, looking instead to judicial precedents and scholarly authorities from around the world to determine that by “general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law” that fishing vessels are exempt from capture as a prize of war.91 The majority concluded with the well-known statement: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”92 In the area of treaty interpretation, courts generally give “great weight” to the views of the executive branch, but do not accept them as controlling.93 “[C]ourts interpret treaties for themselves,”94 looking first to language of the treaty itself.95 The Supreme Court has noted that “construction of a treaty by the 88

Id. at 520 (O’Connor, J., plurality).

89

175 U.S. 677 (1900).

90

Id. at 720 (Fuller, J., dissenting) Id. at 708 (majority opinion).

91 92

Id. at 700. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 326(2) (“Courts . . . will give great weight to an interpretation made by the Executive Branch.”). See, e.g., United States v. Stuart, 489 U.S. 353, 369 (1989) (same); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) (same); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (same). 93

94

Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). United States v. Nai Fook Li, 206 F.3d 56, 63 (1st Cir. 2000) (“ ‘In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.’ ”) (quoting United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992)); see also United States v. Al-Hamdi, 356 F.3d 564, 570 (4th Cir. 2004) (same). 95

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political department of the government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight.”96 Nevertheless, “a treaty’s meaning is not beyond debate once the Executive has interpreted it.”97 The Court’s 2006 ruling in Hamdan v. Rumsfeld98 makes clear that the Court will engage in an independent analysis of treaty language and will reject an unpersuasive interpretation by the executive branch. In that case, the Court held that the Geneva Conventions applied to the U.S. armed conflict in Afghanistan, despite the contrary view asserted by the Bush administration. In rejecting the administration’s analysis, the court stated simply: “That reasoning is erroneous.”99 The executive branch’s interpretation of the treaty language was given no deference at all by the majority.100 Foreign Affairs: Executive branch statements of interest on the act of state doctrine, the political question doctrine, and other issues affecting foreign affairs are entitled to respect, but they are not conclusive. As the Second Circuit explained in Allied Bank International v. Banco Credito Agricola de Cartago, the applicability of the act of state doctrine “may be guided but not controlled by the position, if any, articulated by the executive as to the applicability vel non of the doctrine to a particular set of facts. Whether to invoke the act of state doctrine is ultimately and always a judicial question.”101 The Third Circuit announced a similar standard in Environmental Tectonics, holding that the State Department’s legal conclusions regarding the act of state doctrine were “not controlling on the courts,” but that its “factual assessment of whether fulfillment of its responsibilities will be prejudiced by the course of civil litigation is entitled to substantial respect.”102 In Sarei v Rio Tinto, PLC the Ninth Circuit held the doctrine to be inapplicable to violations of jus cogens norms, despite a Statement of Interest arguing for dismissal.103 96

Medellin v. Dretke, 544 U.S. 660, 685-86 (2005).

97

Id.

98

126 S. Ct. 2749 (2006).

99

Id. at 2795.

100

Justice Thomas, joined by Justices Scalia and Alito, objected to this failure to defer to the executive branch’s interpretation of the treaty. Id. at 2846 (Thomas, J., dissenting). 101

757 F.2d 516, 521 n.2 (2d Cir. 1985).

102

Environmental Tectonics Corp., Inc. v. W.S. Kirkpatrick, Inc., 847 F.2d 1052, 1062 (3d Cir. 1988). 103

2007 WL 1079901 at *40-41, Civ. Nos. 02-56256, 02-56390 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822.

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Similarly, the determination of whether a case presents a non-justiciable political question is to be made by the judiciary. An executive submission to the effect that a case presents a political question is not determinative. In Vatican Bank, for instance, the Ninth Circuit stated that if “the State Department express[es] a view [on whether a case presents a political question], that fact would certainly weigh” in the court’s determination.104 In Ungaro-Benages v. Dresdner Bank AG, the Eleventh Circuit found an ATS suit justiciable over the objections of the executive branch, noting, “This Statement of Interest from the executive is entitled to deference. . . . A statement of national interest alone, however, does not take the present litigation outside of the competence of the judiciary.”105 The Second Circuit in Kadic v. Karadzic stated that “an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication.”106 Two Second Circuit decisions suggested that the executive statements should be reviewed for arbitrariness.107 Even when concluding that a case presented a non-justiciable political question, the court conducted its own analysis.108 While carefully considered the views of the executive branch, the courts have exercised independent judgment and have not always followed those views as to the political question or international comity. In Sarei v. Rio Tinto, PLC, for example, the State Department argued that the case implicated foreign policy concerns in that “continued adjudication of the claims would risk a potentially serious adverse impact on the peace process, and hence on the conduct of our foreign relations.”109 The court reviewed cases addressing the degree of deference due to the views of the executive branch, and concluded that the 104

Alperin v. Vatican Bank, 410 F.3d 532, 556, 562 (9th Cir. 2005) (dismissing, under the political question doctrine, claims regarding war crimes committed by an enemy of the United States during World War II). 105 379 F.3d 1227, 1236 (11th Cir. 2004). The claims were ultimately dismissed on comity grounds. Id. at 1237-40. 106 70 F.3d 232, 250 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996). 107 National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 556 (2d Cir. 1988) (finding there was “no indication that [the Statement of Interest] is an arbitrary or ad hoc directive”); Matimak Trading Co. v. Khalily, 118 F.3d 76, 82 (2d Cir. 1997) (stating that an “unexplained change in stance . . . might under different circumstances require further inquiry into its ulterior motives,” but that “[n]o reason is apparent . . . for refusing to defer to the State Department in this case.”). 108 Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57 (2d Cir. 2005). 109 2007 WL 1079901 at *3, Civ. Nos. 02-56256, 02-56390 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (quoting Sarei Taft Letter, supra note 51).

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judiciary was not bound to dismiss a case in the face the executive branch’s foreign policy concerns.110 As the court explained: Guided by separation of powers principles . . . we conclude that although we will give the view in the [Statement of Interest] “serious weight,” it is not controlling on our determination of [the application of the political question doctrine]. Ultimately, it is our responsibility to determine whether a political question is present, rather than to dismiss on that ground simply because the Executive Branch expresses some hesitancy about a case proceeding.111 The Ninth Circuit reversed the district court dismissal on political question grounds. Similarly, the district court in Presbyterian Church of Sudan v. Talisman Energy, Inc. denied the defendant’s motion for judgment on the pleadings despite the filing of a Statement of Interest that outlined both executive branch concerns about the impact on U.S. foreign affairs and the Canadian government’s opposition to the assertion of jurisdiction over the Canadian defendant.112 The judge declined to defer to the position taken in the Statement of Interest and noted that the United States and other countries “retain a compelling interest in the application of the international law proscribing atrocities such as genocide and crimes against humanity.”113 One district court deferred to an executive branch submission without scrutinizing the logic of the views expressed. In Mujica v Occidental Petroleum Corp., plaintiffs alleged that the defendants provided support to the Colombian armed forces as they raided and bombed plaintiffs’ village, in an effort to protect the oil company’s commercial interests.114 The State Department filed a letter opposing the litigation on the grounds that it would “severely impact this country’s diplomatic relationship with Colombia.”115 The court noted that the executive branch had already sharply criticized the underlying events but still dismissed on the basis of the political question doctrine116 ; it found that proceeding with the case “would indicate a ‘lack of respect’ for the Executive’s 110 111 112 113 114 115 116

Id. at *7-8. Id. at *8 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004)). Civ. No. 01-9882, 2005 WL 2082846 at *1 (S.D.N.Y. Aug. 30, 2005). Id. at *7. 381 F. Supp. 2d 1164, 1168-69 (C.D. Cal. 2005) (appeal pending). Id. at 1169. See Chapter 13, Section A.

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preferred approach of handling the Santo Domingo bombing and relations with Colombia in general.”117 As discussed in Chapter 13, Section A, this degree of deference to the executive branch submission seems to conflict with the approach taken by the Ninth Circuit in its later decision in Sarei. D. EXECUTIVE BRANCH SUBMISSIONS IN HUMAN RIGHTS CASES: AN OVERVIEW The government brief in the landmark Fila´rtiga case urged the federal court to assert jurisdiction over the plaintiffs’ ATS claim.118 In that case, on appeal from the district court’s dismissal, the Second Circuit requested the views of the Carter administration’s Department of State. In a joint brief, the Departments of State and Justice argued strongly that the facts alleged by the Fila´rtigas stated a claim under the jurisdiction of the ATS.119 In a key section, the brief rejected concerns that adjudication of ATS cases would impinge upon the foreign affairs powers of the executive branch, even though “such suits unquestionably implicate foreign policy considerations.”120 [N]ot every case or controversy which touches foreign relations lies beyond judicial cognizance. Like many other areas affecting international relations, the protection of fundamental human rights is not committed exclusively to the political branches of government.121 The amicus brief went on to argue that if the courts confine ATS adjudication to cases in which “an individual has suffered a denial of rights guaranteed to him 117 381 F. Supp. 2d at 1194. See also In re South Africa Apartheid Litig., 346 F. Supp. 2d 538, 553 (S.D.N.Y. 2004) (appeal pending) (dismissing claims on several grounds, including reliance on the executive branch’s statement that “adjudication of this suit would cause tension between the United States and South Africa and would serve to hamper the policy of encouraging positive change in developing countries via economic investment.”). 118 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 119 Memorandum for the United States as Amicus Curiae, Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), 1980 WL 340146, available at www.ccr-ny.org/ humanrightsbook. 120 Id. at 22. 121 Id. (citation omitted). See discussion of the political question doctrine in Chapter 13, Section A.

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as an individual by customary international law,” there will be “little danger that judicial enforcement will impair our foreign policy efforts.”122 Eight years later, under the Reagan administration, the Justice Department reversed its position on the reach of the ATS. Asked by the Ninth Circuit for its views on the correct interpretation of the ATS, the Justice Department filed a brief not joined by the State Department, urging a drastic narrowing of the statute.123 This amicus brief argued that ATS jurisdiction should be restricted to cases in which the U.S. government might in some way be held responsible for the international law violations.124 In the Karadzic appeal, an amicus brief filed by both President Clinton’s Department of Justice and Department of State supported federal jurisdiction over human rights claims, rejecting the narrow range proposed by the Reagan administration in Marcos.125 In Doe v. Unocal, the district court requested the views of the Clinton administration, which responded with a letter stating the view that the litigation would not interfere with foreign affairs.126 122

Id. at 46.

123

Brief for the United States as Amicus Curiae, Trajano v. Marcos, 878 F.2d 1439 (9th Cir. 1989) (table disposition) (text in Westlaw, 1989 WL 76894), available at www.ccr-ny.org/humanrightsbook. The brief was filed in the consolidated appeal of two district court decisions dismissing several lawsuits against Marcos on act-of-state grounds. In this unpublished decision, the Ninth Circuit reversed and remanded, without addressing the jurisdictional issues raised by the government brief. In a later Marcos appeal, the Ninth Circuit addressed and rejected the government’s arguments. Trajano v. Marcos, 978 F.2d 493, 495 n.1 (9th Cir. 1989). The Ninth Circuit later reaffirmed its holding in yet another Marcos appeal, strongly endorsing the Fila´rtiga interpretation of the ATS. In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1472-76 (9th Cir. 1994). 124

The Marcos brief defined those as cases in which (1) the tortfeasor was subject to U.S. jurisdiction at the time the tort was committed; (2) the United States could be accountable for the action; (3) Congress had passed a criminal statute defining the conduct as an offense against the law of nations; and (4) the federal statute provided a private right of action. Id. at 9-10, 26-27. 125 Statement of Interest of the United States, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (Nos. 94-9035, 94-9069), available at www.ccr-ny.org/humanrightsbook. The central point addressed by the government brief—conduct by non-state actors may in some circumstances violate international law—is discussed in Chapter 10. 126 Statement of Interest of the United States (July 8, 1997), National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) (No. 96-6112), reprinted as Exhibit A, National Coalition Gov’t of the Union of Burma v. Unocal, Inc.,

Role of Executive Branch

435

Under the administration of President George W. Bush, multiple executive branch ATS submissions routinely favored the defendants. The effort to undermine the ATS began in Doe v. Unocal, on appeal to the Ninth Circuit, when the Department of Justice filed amicus briefs on its own initiative urging rejection of the modern interpretation of the ATS as granting jurisdiction over human rights claims.127 The administration urged the circuit to reverse its longstanding interpretation of the ATS, arguing that ATS claims interfered with “important foreign policy interests.”128 The substance of the brief was reiterated in a filing in the Supreme Court in support of the petitioner in Sosa v. Alvarez-Machain, in which the administration asserted that permitting any ATS human rights claim would be “incompatible” with the political branches’ foreign affairs authority.129 The administration argued that the ATS did not authorize a cause of action for human rights violations; that judicial recognition of such a claim would interfere with executive control over foreign affairs and thus violate the constitutional separation of powers; and that the ATS should not be interpreted to apply to actions taking place outside of U.S. territory. As discussed in Chapter 2, the Supreme Court rejected each of these arguments in Sosa. Having failed in the effort to reverse the modern interpretation of the ATS, the Bush administration repeatedly submitted statements designed to sharply curtail the reach of the statute, particularly as applied to corporate defendants. First, the administration argued that any case that might examine the actions of a foreign government would threaten foreign relations, even if the foreign government was not a party to the case. Second, the submissions asserted broadly that claims against corporations threatened U.S. foreign investment and 176 F.R.D. 329, 361-62 (C.D. Cal. 1997), available at www.ccr-ny.org/humanrightsbook. 127 Brief for the United States of America as Amicus Curiae, Doe v. Unocal, 403 F.3d 708 (9th Cir. 2005) (Civ. Nos. 00-56603, 00-56628), available at www.ccr-ny.org/ humanrightsbook. 128 Id. See also Supplemental Brief for the United States as Amicus Curiae, Doe v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (Civ. Nos. 00-56603, 00-56628), available at www.ccr-ny.org/humanrightsbook. 129 Brief for the United States as Respondent Supporting Petitioner at 31-40, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339), available at www.ccr-ny.org/ humanrightsbook. A number of amicus briefs addressed this issue, including one filed on behalf of former diplomats. All are available at www.ccr-ny.org/humanrightsbook.

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the economic growth of the countries where the events took place, and therefore interfered with U.S. policy favoring economic ties with foreign countries.130 The submissions in Doe v. Exxon Mobil Corp. illustrate these points. The district court wrote to the Department of State to ask “whether the Department of State has an opinion (non-binding) as to whether adjudication of this case at this time would impact adversely on interests of the United States.”131 The Department of State responded with a letter arguing that Indonesia would perceive the lawsuit as “interference” in its internal affairs and would therefore decrease cooperation with the United States on a range of issues.132 The letter suggested that the case would lead to decreased foreign investment in Indonesia and curtail investment opportunities for U.S. businesses.133 In a description of the cascading, potentially catastrophic consequences of the lawsuit, the submission suggested that adjudication of the case could undermine Indonesia’s economic and political stability and the security of the entire region, thereby “risk[ing] a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.”134 The court rejected this broad attack on the case but did impose limits on discovery designed to avoid greater intrusion into Indonesian sovereignty. Despite these restrictions, the State Department filed an additional submission stating that the litigation still triggered the concerns set forth in the original letter.135 Almost all of the Bush administration submissions repeated a concern about the impact of litigation on U.S. relations with foreign governments, but the courts often questioned that conclusion or found it insufficient to justify 130

The administration also argued that the courts should not apply aiding and abetting liability in ATS cases, an issue addressed in Chapter 10. 131 Letter from William H. Taft, Legal Advisor, Dept. of State, to Judge Louis F. Oberdorfer, at 1, Doe v. Exxon Mobil, 393 F. Supp. 2d 20, 22 (D.D.C. 2005) (01-1357), available at www.ccr-ny.org/humanrightsbook. 132 Id. at 2-3. 133 Id. at 3-5. 134 Id. at 1. The letter observed, however, that its assessment was “necessarily predictive and contingent” on how the case proceeded, including the intrusiveness of discovery and the extent to which the case required “judicial pronouncements on the official actions of the [government of Indonesia] with respect to its military activities in Aceh.” Id. at 2 n.1. 135 Supplemental Statement of Interest of the United States of America, at 2, Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005) (No. 01-1357), available at www.ccr-ny.org/humanrightsbook.

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dismissal of the lawsuit.136 In Sarei v. Rio Tinto, PLC, for example, the Department of State expressed concern that the litigation “ ‘would risk a potentially serious adverse impact on the [Bougainville] peace process, and hence on the conduct of [United States] foreign relations.’ ”137 The Ninth Circuit rejected these concerns, reversing the district court dismissal of the case.138 Similarly, in Presbyterian Church of Sudan v. Talisman Energy, Inc., the State Department submitted a diplomatic note from the government of Canada, the home country of the defendant corporation, and expressed concerns about the effect of the litigation on U.S. relations with Canada139 ; the district court nevertheless denied a motion to dismiss on political question grounds.140 Bush administration submissions also repeatedly urged a narrow interpretation of the ATS, even on issues that were resolved in by the Supreme Court in 136

But see Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134 (C.D. Cal. 2005) (appeal pending) (dismissing on political question grounds), discussed supra text accompanying notes 114-117. 137 221 F. Supp. 2d 1116, 1181 (C.D. 2002) (alteration in original) (quoting Sarei Taft Letter, supra note 51). 138 Sarei v. Rio Tinto, PLC, 2007 WL 1079901, Civ. Nos. 02-56256, 02-56390 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. Following the original panel decision in Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006), defendants moved for rehearing or hearing en banc, and the executive branch filed an amicus brief supporting the motion. Brief for the United States as Amicus Curiae Supporting Panel Rehearing or Rehearing en Banc, Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006), available at www.ccr-ny.org/humanrightsbook. The original panel issued a revised opinion reiterating its conclusion that the case did not present a non-justiciable political question. Sarei v. Rio Tinto, PLC, 2007 WL 1079901, at * 20-36, Civ. Nos. 02-56256, 02-56390 (9th Cir. Apr. 12, 2007). The Ninth Circuit later granted a petition for rehearing en banc (2007 WL 2389822). 139 See Letter of William H. Taft, IV, Legal Advisor, Dep’t of State, to Daniel Meron, Principal Deputy Assistant Attorney General, Civil Division, Dep’t of Justice, attached as Exhibit A to Statement of Interest of the United States of America, Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846, Civ. No. 01-9882 (S.D.N.Y. Aug. 30, 2005), available at www.ccr-ny.org/humanrightsbook. The Diplomatic Note from the government of Canada was attached to the Taft letter. 140 Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846, Civ. No. 01-9882 (S.D.N.Y. Aug. 30, 2005). The court remarked “that it is telling that the United States has not advised this Court that the continuation of this lawsuit will adversely affect the Government’s relations with Canada or threaten the goal of achieving peace in Sudan.” Id. at *6.

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2004 in Sosa v. Alvarez-Machain. For example, in Doe v. Constant,141 a case against a former Haitian colonel accused of rape and other torture and crimes against humanity, the court invited the views of the executive branch before holding a hearing on damages on a default judgment. The administration filed a submission reiterating its concerns about the ATS and attaching an amicus brief filed in another case that argued for a restrictive interpretation of the ATS.142 141

Civ. No. 04-10108 (S.D.N.Y. Dec. 21, 2004). Statement of Interest of the United States, Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Sept. 28, 2006), available at www.ccr-ny.org/humanrightsbook. The Statement of Interest also attached a short letter from the State Department which noted that the government of Haiti had not contacted the Department about the litigation. Id. at 1-2. 142

Part VI LITIGATION

In the period from the 1980 Fila´rtiga1 decision through the early 1990s, fewer than two dozen reported cases were filed under the Alien Tort Statute (ATS).2 Most were filed against individual defendants, and most were decided by successful motions to dismiss or ended with default judgments. Since that time, Congress has expanded both the grounds for human rights litigation and the potential parties, with the enactment of the Torture Victim Protection Act (TVPA),3 the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA),4 and the Anti-Terrorism Act (ATA).5 The Supreme Court has also affirmed the modern application of the ATS.6 Dozens of lawsuits have been filed against a widening range of defendants, including corporations. Several cases against individual defendants have proceeded to trial. In addition to the legal issues discussed in the first parts of this book, human rights lawsuits face daunting hurdles that impact the litigation process, from the first efforts to develop a case through discovery, trial, and collection of any judgment. Plaintiffs have suffered traumatic abuse and may have been forced to leave their homes. Evidence is often scattered, located out of the court’s jurisdiction, and difficult to access in admissible form. Individual defendants hide assets, corporate defendants hide behind complex legal structures, and government defendants claim immunities. Notwithstanding these difficulties, many cases can be filed and litigated successfully. Thousands of potential plaintiffs live in the United States, refugees from countries around the world who are survivors of gross human rights violations. Some of their persecutors live here, and others visit regularly.7 Many 1 2 3

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 28 U.S.C. § 1350. See Chapters 1-3. 28 U.S.C. § 1350 (note). See Chapter 4.

4

28 U.S.C. § 1605(a)(7). See Chapter 5. 18 U.S.C. §§ 2331-2339C. See Chapter 6. 6 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 7 For an overview and examples of human rights abusers living in the United States, see Amnesty International, USA: A Safe Haven for Torturers (2002), available at http:// www.amnestyusa.org/stoptorture/safehaven.pdf. 5

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potential corporate defendants are subject to U.S. jurisdiction. Human rights groups abroad are interested in the possibility of seeking redress in U.S. courts and willing to assist in litigation. With an investment of creativity and effort, solid human rights lawsuits can be prepared and filed. Successful litigation, however, requires careful attention to the special problems that are inherent in cases addressing extraordinary, traumatic events that often take place in remote parts of the world and are based on highly contested legal theories. The five chapters in this part deal with areas of special concern for human rights litigation. A general familiarity with federal court litigation is assumed. Chapter 17 focuses on developing a case and drafting and filing the complaint. Chapter 18 deals with motions to dismiss, pro se defendants and default judgments. Chapter 19 focuses on discovery, and Chapter 20 on proving a case at the summary judgment stage or at trial. Finally, Chapter 21 addresses remedies. From the outset of an investigation of a human rights case through to its conclusion and even beyond, the safety of the clients is an important element of counsel’s responsibilities. This concern is addressed in part in Chapter 9, which deals with anonymous plaintiffs, and will be repeated and stressed throughout this part.

CHAPTER 17 PREPARING AND FILING A MANAGEABLE CASE

This chapter reviews litigation issues particular to human rights lawsuits from the initial development of a case through the filing and service of the complaint. Each of the authorizing statutes has particular requirements, analyzed in full in earlier chapters of this book. The focus in this section is on the common factors involved in preparing a case under any of the statutes, although the emphasis is on the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA). A. DEVELOPING A CASE 1.

The Origins of the Litigation

Human rights claims are likely to be originated by human rights victims or their family members, or through investigations triggered by human rights activists or lawyers. Potential plaintiffs may approach lawyers or activists with information that the person who violated their rights is living in the United States. This occurred in Fila´rtiga,1 when the father and sister of the victim discovered that Americo Norberto Pen˜a-Irala was living in Brooklyn, and their immigration lawyer suggested that they contact the Center for Constitutional Rights (CCR). A similar set of facts led to the filing of Abebe-Jira v. Negewo.2 In that case, Edgegayehu Taye, an Ethiopian woman who was brutally tortured in 1978-1979 in Ethiopia, had moved to Atlanta where she worked in a hotel. Some ten years after her torture, she recognized the man who had tortured her, working in the same hotel. Taye contacted a lawyer and was also referred to CCR. A lawsuit was filed within several months.3 1

Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 72 F.3d 844, 845-46 (11th Cir. 1996). 3 See Andrew Rice, The Long Interrogation, N. Y. TIMES MAGAZINE, June 4, 2006, § 6, at 50, for a full account of the development and litigation of Abebe-Jira. 2

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Cabello v. Ferna´ndez-Larios was the result of an unexpected confluence of events.4 In 1998, on the 25th anniversary of the “caravan of death,”5 former Chilean dictator Augusto Pinochet was arrested in England on a warrant from the Spanish government that focused on his responsibility for the disappearance of Spanish citizens in Chile during his reign. The Center for Justice and Accountability (CJA), a non-profit group that litigates human rights lawsuits in U.S. courts, joined an international search for those who might provide evidence against the former dictator. Zita Cabello, the sister of one of the victims of the “caravan of death,” had learned that one of those responsible for her brother’s death was living in the United States. She brought the information she had gathered to CJA, which initiated the lawsuit. In other cases, human rights groups, lawyers, or others familiar with the human rights situation in a particular country may learn of the presence of a potential defendant in the United States, either living here or on a visit. If a lawsuit seems both important and possible, information about the cause of action and the likely defendant can be disseminated to potential plaintiffs. The litigation against Guatemalan General Hector Gramajo is one example of this model.6 Activists involved in exposing human rights abuses in Guatemala approached CCR with information that General Gramajo, the former Minister of Defense of Guatemala and a serious human rights abuser, would be spending a year studying at the Kennedy School of Government at Harvard University. He appeared to be a potential defendant—a former military official with personal responsibility for a program of appalling human rights abuses. Further, the activists felt that a lawsuit against Gramajo would contribute to the struggle to improve the atrocious human rights situation in Guatemala. This information eventually led to the filing of two lawsuits against Gramajo. In other instances, legal organizations abroad become aware of a pattern of human rights abuses and contact counsel in the United States with experience 4 205 F. Supp. 2d 1325 (S.D. Fla. 2002). The defendant Ferna´ndez-Larios was involved in the assassination of Orlando Letelier, a former ambassador to the United States, who was killed in a car bombing while living in Washington, D.C. In exchange for providing information on the assassin and Chilean intelligence operations, Larios was sentenced to a federal prison for seven years and guaranteed that he would never be deported to Chile. He was released after five months in prison. 5 More on the “Caravan of Death” and the development of the Cabello case can be found at http://www.cja.org. 6 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).

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litigating under the ATS. For example, in Doe v. Unocal,7 EarthRights International (ERI), a Washington, D.C.-based group working with Burmese refugees in Thailand, documented abuses relating to the construction of a gas pipeline through Burma by corporations based in France and the United States. ERI contacted CCR; the two organizations then enlisted private counsel and formed a litigation team that filed suit in California, where the U.S. corporation was headquartered.8 2.

Working with Potential Plaintiffs: Understanding the Goals of the Litigation and the Impact on the Plaintiffs’ Lives

One of the most important initial tasks for all those involved in developing a human rights legal case is to be clear about the purpose of the lawsuit.9 In claims against individual defendants, collection of money damages is likely to be difficult. The plaintiffs and the lawyers who work with them must agree that a lawsuit is important even if damages are never collected. Cases brought against governments on the list of “state sponsors of terrorism” may also result in default judgments that are difficult to collect. In such circumstances, the goal is more likely to be the case’s impact on the plaintiffs and the defendant, on human rights in the country where the abuses took place, and on human rights elsewhere. As to claims brought against corporate defendants, plaintiffs, and especially their lawyers, must be prepared for intensive and protracted litigation against law firms with seemingly unlimited resources. Potential plaintiffs in human rights cases are likely to suffer from ongoing psychological wounds. Counsel should be prepared both to be sensitive to these injuries in their own interactions with their clients and to refer them to appropriate support services. A number of centers around the United States and abroad specialize in providing treatment to survivors of torture and other abuses.10 In addition, litigation may cause new trauma for litigants. Plaintiffs 7

963 F. Supp. 880 (C.D. Cal. 1997).

8

The case was settled in 2004. Unocal Settles Rights Suit in Myanmar, N.Y. TIMES, Dec. 14, 2004, at C6. 9

See Sandra Coliver, Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 EMORY INT’L L. REV. 169, 173-86 (2005) (discussing the impact of U.S. human rights litigation). 10

Organizations offering medical, psychological, and other services to torture survivors are listed on the Web sites of Survivors of Torture, International, at http:// www.notorture.org/links.html; Survivors International, at http://www.survivorsoftorture. org/survivors/; and the Center for Victims of Torture, http://www.cvt.org/main.php.

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must understand the risks involved in filing a lawsuit, and the possible toll on their lives. They must be able to maintain contact with their lawyers and handle the logistical obligations of pursuing U.S. litigation. Gramajo is illustrative of one set of potential problems. Victims who were still living in Guatemala could not participate: No one living there, even if they sued anonymously, could risk joining a lawsuit. It would also have been difficult for the lawyers to communicate with clients in Guatemala and investigate their claims, particularly after the filing of the suit. Plaintiffs living in the United States, Canada, and Mexico were more likely to participate. Numerous organizations and human rights activists working with Guatemalan refugees were, therefore, contacted and asked to inform potential plaintiffs about the possibility of a lawsuit. Some survivors who had valid claims were unable to join because they had relatives in Guatemala or they wished to return there and feared retaliation. Others had suffered during time periods in which the link to Gramajo was less clear. Finally, only a few weeks before Gramajo was due to leave the United States, a group of Kanjobal Indians from the Guatemalan highlands, living in California, indicated that they wanted to sue Gramajo. Sadly, because their families had been so decimated, most had no relatives left in Guatemala, and they no longer feared reprisals. They were interviewed, a complaint was prepared, and Gramajo was served at his graduation from Harvard’s Kennedy School of Government. One week later, Sister Dianna Ortiz filed a parallel lawsuit against Gramajo, charging him with responsibility for her kidnapping and torture by security forces under his command. In the case against Unocal, human rights workers from ERI were able to identify scores of Burmese villagers who had been forced to flee the area where the pipeline was being constructed. However, potential plaintiffs needed to be available to travel from the remote border region between Burma and Thailand to places where they could be interviewed by lawyers and, later in the litigation, answer interrogatories and appear for depositions. Each trip required braving dangers from a hostile military, illness, and washed-out roads. When the plaintiffs are residing in remote and politically unstable places, both lawyers and plaintiffs need to accept the possibility that some of the plaintiffs who begin the case will not be able to stay in touch with their lawyers throughout the litigation, and therefore they must plan accordingly. When victims of human rights abuses contact an attorney and ask for assistance in bringing a human rights abuser to justice, the litigator cannot assume that the likely plaintiff has weighed all of the risks and benefits of participating in such a lawsuit. Contacting potential plaintiffs and informing them about the possibility of a lawsuit make it even more imperative that the full

Preparing and Filing a Manageable Case 445

ramifications be discussed.11 The legal staff must emphasize again and again that this is a civil case and, even if it is successful, the defendant will not go to jail. In addition, it is important to explain that U.S. civil lawsuits award monetary damages. Many plaintiffs find it hard to understand how the payment of money can be seen as compensation for the loss of a loved one. During a deposition in Wiwa v. Royal Dutch Petroleum Co.,12 for example, one of the plaintiffs, acting as a representative for his deceased brother, stated several times that he was not “selling” his brother’s death and that no money could compensate for his brother’s suffering and death. It is also important to disclose that collection of a damage award is likely to be difficult in most of these cases. For many victims of human rights abuses, however, the act of bringing their abuser to justice is compensation enough. In Xuncax v. Gramajo,13 for instance, the plaintiffs clearly understood that it was unlikely that they would be able to collect the damages awarded to them. Still, they felt that it was important to bring attention to what had happened in Guatemala and to obtain a formal judicial acknowledgment of their suffering and Gramajo’s responsibility. Plaintiffs must understand how money will be distributed if a settlement is reached or a judgment can be enforced. Multiple plaintiffs may receive very different amounts. Class representatives may be entitled to a greater share of a recovery. Even more difficult, non-plaintiffs may feel that they have a right to share a collection, and some of the plaintiffs may agree. Legally, of course, if a case is litigated by individual plaintiffs, they have a right to the judgment, regardless of the moral claims of other injured victims. Lawyers should take great care to understand their obligations to their clients in the face of such demands. In particular, representing both individual clients and an organization working with groups of victims could create ethical conflicts, if the group argues that plaintiffs should share their recovery with others who have been injured. Even if recovery seems unlikely, discussions about the process by which it would be divided should be initiated early in the litigation process. Discussions about the ramifications of a lawsuit in the United States are made more difficult by language and cultural barriers, which will be magnified if the potential plaintiffs are outside of the United States. Many aspects of the 11 The Center for Justice and Accountability has developed a fact sheet to help prepare a plaintiff for the litigation process. See CJA, Being a Plaintiff, available at http:// www.cja.org/cases/Beingaplaintiff.pdf. 12 Civ. No. 96-8386, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002). 13 886 F. Supp. 162 (D. Mass. 1995).

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U.S. legal system are hard to explain, including crucial concepts such as the fact that the defendant will not be sent to prison even if a jury finds liability for human rights violations. Others, such as the procedural steps that precede a decision on the merits, are more technical. If such communication hurdles cannot be adequately overcome on major issues relating to litigation, the lawsuit should not be filed. Plaintiffs’ lawyers must also keep in mind the need to maintain communication over the life of the lawsuit. In times of war or other massive human rights violations, victims may be forced to move and may not have access to a telephone, e-mail, or other quick communication. Counsel should try to anticipate such problems and beware of attempting to represent clients whose lives are in such flux that they may not be able to adequately participate in their legal case. Litigation requires some method of consistent contact with the plaintiffs. Ideally, the work of litigators based in the United States will be facilitated by an organization abroad with the resources to maintain contact with the plaintiffs and consult with them as the litigation progresses. Even where the plaintiffs are based in the United States, it will be useful to have persons familiar with the situation of the plaintiffs and known in the community as part of the litigation team. Having an established and honest relationship with people in the affected communities is essential for developing the case, responding to discovery, and making informed decisions along the way about whether or how to protect the plaintiffs’ identities and, hopefully, about whether or how to settle the claim. In addition to the practical problems of continuing with the litigation, everyone involved must recognize that litigation requires plaintiffs to repeatedly retell and therefore relive the horrors that they experienced. If the case goes to trial, the plaintiffs must be prepared to testify, probably in front of a jury. In a contested case, the plaintiff will have to face the defendant and will undergo cross-examination. Finally, plaintiffs should recognize that the process is likely to be very long. In Unocal, for example, plaintiffs were interviewed in 1996. The case was scheduled for trial in 2005, when it finally settled. Plaintiffs must be advised that a lawsuit may drag on for years. They should try to think ahead and consider whether the community and personal motivations that led them to join the lawsuit will change over time. To the extent possible, they should be able to predict that they will be willing to continue the litigation as they move on with their lives. These multiple obstacles and limitations lead many potential plaintiffs to decide against participating in a lawsuit. Nevertheless, for those who enter the

Preparing and Filing a Manageable Case 447

process fully aware of what they may experience, the litigation can entail significant and often unexpected benefits. In a case involving the massacres and physical destruction in East Timor by the Indonesian military following a vote for independence,14 a psychologist testified about the pain of recalling those events. The judge asked her why people were willing to revisit their suffering at such personal cost. She explained that, from the plaintiffs’ point of view, if they were silent, their abusers would be given another victory. Despite the pain experienced in the retelling, the act of surviving and speaking out was the plaintiffs’ victory. A plaintiff in Arce v. Garcia15 explained: When I testified, a strength came over me. I felt like I was in the prow of a boat, And I felt like there were many, many people rowing behind—that they were moving me into this moment. But I didn’t want to turn back to look. I felt that if I looked back at them, I’d weep because I’d see them again: wounded, tortured, raped, naked, torn, bleeding. So, I didn’t want to look back, but I felt their support, their strength, their energy.16 3.

Linking Plaintiffs to a Defendant and a Human Rights Violation

Human rights litigation requires linking one or more plaintiffs to a defendant who is legally responsible for an actionable human rights violation that injured the plaintiffs.17 This can be both complicated and time consuming. Plaintiffs, of course, must be victims of the abuses of the particular defendant. Thus, it is important to determine the scope and time period of the abuses for which the defendant can be held responsible. In addition, each plaintiff must satisfy the federal requirement of standing to sue: As detailed in Chapter 9, human rights cases have been litigated by the direct victim of an abuse, by the legal representative of the estate of a deceased victim, and by beneficiaries of the deceased victim. When a case is brought on behalf of a decedent, counsel should investigate both the laws of the place where the death occurred and the rules of the forum state to ensure that the plaintiff has standing to bring the case. 14

Doe v. Lumintang, Civ. No. 04-7212, 2005 WL 3789109 (D.C. Cir. July 11, 2005). 434 F.3d 1254 (11th Cir. 2006). 16 Statement of Juan Romagoza, available at http://www.cja.org/forSurvivors/reflect.doc, quoted in Coliver et al., supra note 9, at 180-81. 17 For more on the factual connections necessary to show that a defendant is legally responsible for a plaintiff’s injuries, see Section B, Drafting the Complaint. 15

448 International Human Rights Litigation in U.S. Courts

In the Gramajo case,18 for example, months of research, including consultations with experts on Guatemala, confirmed that Gramajo had personally planned and implemented a brutal “pacification” program in the Guatemalan highlands in the early 1980s. Under this program, tens of thousands of Indians were tortured, murdered, and forced from their land. Victims (or their surviving relatives) from this region of Guatemala who were abused during the relevant time period were potential plaintiffs in a lawsuit against Gramajo. The attorneys spent many hours with more than one group of potential plaintiffs, some of whom chose not to participate after a full discussion of the possible consequences. The Kanjobal Indians who did join the lawsuit discussed the issues involved with their immigration attorney—with whom they had a longstanding relationship of trust—as well as with representatives of CCR. They decided to participate only after considering the possible impact of the litigation on their immigration claims—most were awaiting decisions on claims for political asylum—and on their relatives in refugee camps in Mexico. 4.

Ensuring that the Case Is Manageable

It is important in the preliminary phases of case preparation to look down the road to managing the case through to its conclusion. Each additional plaintiff will require an increase in resources. It is necessary to have the ability to reach each plaintiff throughout the various stages of litigation. Defendants will seek discovery from each plaintiff through document requests, interrogatories, depositions, and requests for admission. Given the likelihood that language, culture, and distance will separate counsel and plaintiffs, counsel will have to devote considerable resources to maintaining meaningful communication. In the happy event that the defendant makes a reasonable settlement offer, an increase in the number of plaintiffs may lead to different and contradictory views of the proposal. If a case goes to trial, each additional plaintiff will have to be prepared and supported through the process. Clearly, including more plaintiffs will increase the need for further resources, in terms of both personnel and financial support. Although multiple plaintiffs may complicate the litigation process, counsel should evaluate the risk that one or more plaintiffs will be unable to participate in the lawsuit until the end. The physical situations of the plaintiffs, especially those living in remote and chaotic circumstances, may make it impossible to reach the client in a timely manner or make it impossible to bring the plaintiff to a location where discovery responses can be prepared or depositions can be 18

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).

Preparing and Filing a Manageable Case 449

taken. As noted above, the litigation team in Unocal19 encountered many obstacles to meeting with plaintiffs, including invasions by the Burmese army into formerly safe areas, floods making roads impassable, and illness such as malaria or dengue fever. In other cases, plaintiffs died either as a result of the abuse they suffered or of natural causes. As a lawsuit drags on, other unpredictable changes in a plaintiff’s life may make it impossible to continue with the litigation. Divisions and alliances inside the community that suffered abuse may also affect the choice of how many and which plaintiffs to include. It may be necessary that the plaintiffs represent different families or other groups in the affected community. There is also an issue of fairness. The desired result of litigation is an award of damages to each plaintiff. Will the plaintiffs feel that it is necessary or preferable to share damages with others who suffered? If not, how will those persons who suffered abuses but did not become plaintiffs react? The final determination of how many plaintiffs to include will involve considerations of the resources available and the situation on the ground. Most importantly, the decision should be made after careful consideration of the competing interests. 5.

Pre-Filing Investigation and Fact Gathering

Basic information about the plaintiffs, the defendant, and the claim must be evaluated before counsel decides whether a lawsuit is legally justified and practically feasible. As in any litigation, this preliminary fact gathering must include an analysis of the evidence likely to be available to prove each of the key facts. It is important to consider in advance the evidentiary problems that often arise in cases such as these, which usually involve events in another country and often violence and political instability.20 Even at this early stage, the practitioner should begin to accumulate evidence in a form that will be admissible in opposition to summary judgment and at trial. 19

963 F. Supp. 880 (C.D. Cal. 1997). As in any case, attorneys should review their factual support in light of the requirements of Rule 11 of the Federal Rules of Civil Procedure. Rule 11 concerns may be more acute in cases based on unfamiliar fact settings and novel areas of law. Nevertheless, only one reported case involving the ATS has led to Rule 11 sanctions for filing a case without legal or factual support. See Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989). That case was unusual in that it involved a challenge to foreign sovereign immunity, head-of-state immunity, and the immunities of the U.S. government; Saltany was also litigated under the more stringent version of Rule 11, prior to the 1993 amendments. 20

450 International Human Rights Litigation in U.S. Courts

The details of the plaintiff’s story must be gathered, with attention to what happened and to who exactly committed the abuses. Relevant questions include: If the defendant physically committed the abuses or was personally present, can the plaintiff identify him? Is the plaintiff a credible witness? What evidence is available to buttress the plaintiff’s testimony? Are there other witnesses? Will those witnesses be willing to testify, or will they themselves be endangered by participating in the case?21 Does documentary evidence support the plaintiff’s claims? Was the case investigated by human rights organizations? Are their files available? What risks might the human rights organization face if it shares its files with the legal team? Is the defendant likely to produce witnesses or other evidence to contradict or impeach the plaintiff’s testimony? Will discovery initiated by the defendant create unacceptable risks—for example, by forcing the plaintiff to release names of witnesses who prefer to remain anonymous? The legal team must review the injuries and other damages suffered by the plaintiff. Is there physical evidence of torture, such as scars? Has the plaintiff been examined by a medical doctor or a therapist?22 What emotional harm has the plaintiff suffered, and how will it be proven? Will it be possible to document other damages, such as lost property, medical expenses, and lost income? In the case of a decedent, it is important that the decedent’s representative be a person who has or can obtain authority to act on behalf of the deceased. Counsel must examine the connection of the defendant to the human rights abuse with great care, particularly if the claim is not based on direct commission of the abuse. Did the defendant order the abuses suffered by the plaintiff? Did the defendant aid and abet the commission of the abuse? Was the defendant in a legal relationship with the direct perpetrator, such as a principal/agent or joint venture relationship, which can form a basis for defendant’s liability for abuses directly committed by another? Is there direct evidence of this relationship? Were the abuses part of a program or a pattern and practice of human rights abuses? What is known about the defendant’s role in planning, designing, implementing, or supervising that program? If a case is based upon proof of a campaign of human rights abuses and the defendant’s role in that campaign, care must be taken to place the plaintiff within the scope of both the program and the 21

Where a lawsuit is filed against government or military officials who are still in power or still capable of violence, mere association with the case may be dangerous. That danger may be even greater where the plaintiffs or witnesses have been actively involved in opposition to the government or the military. 22 As mentioned earlier, a number of centers around the country specialize in providing services to survivors of torture and other human rights abuses. See supra note 10.

Preparing and Filing a Manageable Case 451

defendant’s personal responsibility. If the abuses were carried out by private security forces, is there evidence that supports the contention that they were state actors, if state action is necessary? Cases based on command responsibility present additional questions. Can the perpetrators be connected to the defendant through the chain of command? If the attackers were in plain clothes, is there sufficient evidence to tie them to the defendant? Experts may be available to state their opinions as to the role of the defendant in the command structure. Cases against corporate defendants raise special questions about the relationship between the defendant corporation and the individuals who physically committed the abuses. What is the relationship between the defendant corporation and any subsidiaries involved in the offenses? Is it possible to sue the subsidiaries in the United States? What information is likely to be acquired through discovery about that relationship? If the abuses were carried out by the military or by a militia or security force, is there evidence to establish that the corporation was complicit in the misconduct? Particularly in corporate cases, but in cases against individuals as well, much of the critical information will be in the control of the defendant. Counsel is obligated to conduct a reasonable investigation into the facts. However, it is unlikely that, without discovery, a plaintiff will have sufficient information before filing to completely answer all of these questions.23 Some allegations of the complaint may be based on “information and belief.” Some cases involve special political considerations that may affect how the judge and jury react to the case. Was the plaintiff involved in or linked to armed resistence? Was the plaintiff the member of a group perceived to be hostile to the United States? Conversely, is the defendant associated with a group about which the judge and jury are likely to have positive impressions? These are matters for counsel to consider in deciding whether litigation in the United States is appropriate. However, cases can overcome these obstacles. For example, in the Marcos litigation, defendants attempted to undermine one plaintiff by painting him as a communist. Nevertheless, the circumstances of his arrest, torture and detention resulted in a verdict in his favor.24 B. DRAFTING THE COMPLAINT The Federal Rules of Civil Procedure incorporate a flexible approach to complaint drafting, requiring only that a complaint give fair notice of the claims 23 24

Discovery is discussed in Chapter 19. Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996).

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asserted against the defendant.25 However, the complaint is the first, and, for a significant amount of time, the only document about the case that will be available to the judge, the plaintiffs and defendants, the press, and others interested in the lawsuit. It should tell a story that places the case in a sympathetic light but also quiets possible fears that the lawsuit is merely political or has a weak legal foundation. Despite the general applicability of the notice pleading standard to all federal complaints, some courts have examined the pleadings to determine if the allegations of the complaint describe conduct that violated an actionable norm.26 Pleadings should also anticipate the possibility of a default judgment. In many of the earlier ATS cases, the defendant defaulted before trial. As a result, the plaintiffs had the benefit of the presumption that all well-pleaded allegations of the complaint are assumed to be true.27 Keeping the possibility of a default in mind, it is wise to include all of the facts necessary to make a strong case against the defendant. However, where a case is likely to be contested, too much specificity may create conflicts between the allegations of the complaint and the factual record that develops in discovery. While drafting the complaint, keep in mind the thin line between providing detail sufficient to present a compelling story and providing details that may turn out to be inaccurate in some particular. The complaints filed in the Constant and Carranza cases typify the basic model used in most ATS and TVPA individual defendant cases.28 The complaints begin with a preliminary statement that introduces the broad outline of the case. They follow with a section setting forth the basis of jurisdiction, which includes both 28 U.S.C. Section 1331 “arising under” jurisdiction and the ATS. State law claims should be listed as well. While earlier cases listed the international law sources for the claim alleged, including both U.N. and regional human rights instruments,29 more recent complaints generally refer to such 25 FED. R. CIV. P. 8; Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). 26

See Chapter 2 for a discussion of notice pleading and ATS claims, Chapter 7 for an analysis of actionable norms, and Chapter 18, discussing challenges to the court’s subject matter jurisdiction. 27

See Chapter 18.

28

The complaints in Doe v. Constant, No. 04-10108 (S.D.N.Y. Sept. 28, 2006), and Chavez v. Carranza, 413 F. Supp. 2d 891 (W.D. Tenn. 2005), are available at www.ccrny.org/humanrightsbook. 29 For an example of an earlier complaint listing all of the relevant international law sources as part of the allegation of jurisdiction, see the complaint filed in Xuncax v.

Preparing and Filing a Manageable Case 453

supporting documents only as relevant to the definition of the international law claim in the cause of action. If the defendants are multinational corporations, it is useful to plead additional elements: general allegations about the liability of the U.S. corporate defendant for the actions of its subsidiary in the place where the injury was sustained; and general allegations about the liability of the corporate defendant for the actions of the forces that physically committed the abuses. The basic model of a complaint against a multinational corporation is typified by the complaint in Bowoto v. Chevron Corp.30 The basic model for a claim under the ATA is reflected in Klieman v. The Palestinian Authority.31 Venue is not a problem in a lawsuit against an alien defendant: such suits may be brought in any federal district.32 A problem of venue is more likely to arise in a claim against a multinational corporation. For example, in Saleh v. Titan Corp.,33 the case was filed in the Southern District of California, transferred on defendants’ motion to the Eastern District of Virginia, and then, on plaintiffs’ motion, to the District of Columbia. If plaintiffs anticipate that venue will be litigated, it is important, prior to filing the complaint, to gather evidence of the ties of the corporate defendants and the cause of action to the chosen jurisdiction. After a description of the parties, the complaint recites the facts underlying the claim. General background about human rights abuses at the relevant time period is useful to show that such abuses really did take place at that time. Although not technically necessary, it may be helpful to refer to the conclusions of well-respected international organizations to show that the basic allegations of the complaint are well founded. Information about the pattern of human rights abuses demonstrates that it is entirely plausible that an individual defendant would have had the authority to commit gross human rights abuses with Gramajo, 886 F. Supp. 162 (D. Mass. 1995), available at www.ccr-ny.org/humanrightsbook. 30 Civ. No. 99-02506, 2006 WL 2604591 (N.D. Cal. Aug. 22, 2006), available at www.ccr-ny.org/humanrightsbook. For another example, see the complaint in Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), available at www.ccr-ny.org/ humanrightsbook. 31 424 F. Supp. 2d 153 (D.D.C. 2006), available at www.ccr-ny.org/humanrightsbook. 32 28 U.S.C. § 1391(d) (“An alien may be sued in any district.”). Venue is also proper in “a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.” 28 U.S.C. § 1391(b)(3). 33 436 F. Supp. 2d 55 (D.D.C. 2006).

454 International Human Rights Litigation in U.S. Courts

impunity. It also sets the stage for a claim of command responsibility, by showing that the security forces under the defendant’s control regularly committed abuses of the type alleged in the complaint. Each of the plaintiffs’ stories must be told in a non-rhetorical but compelling style. All facts linking the defendant to the abuse suffered by the plaintiffs must be detailed. When the plaintiff is anonymous, detailed descriptions of the specific facts surrounding the plaintiff’s case may reveal the identity of the plaintiff. In such a case, the complaint should provide fewer details and meet only the notice requirements of the federal rules.34 Counsel should consult carefully with the client about what details may reveal the client’s identity and should be kept out of the complaint. If the claim is based on command responsibility, facts showing the defendant’s position in the organization responsible for the abuses should be included. If the defendant is likely to assert some form of immunity, the complaint may anticipate the defense by alleging facts that would place the conduct outside of the claimed immunity.35 If state action is required, general allegations usually should state that the acts committed by the defendant were inflicted under color of law and official authority.36 To respond to potential questions about the exhaustion of domestic remedies or the statute of limitations, the complaint should include a statement as to the impossibility of bringing a comparable action in the country where the abuse took place or at an earlier date. Such a statement may be necessary in a TVPA action37 ; even in other actions where it is not essential, it responds to concerns a judge is likely to have about the case. Where counsel anticipate needing to show equitable tolling of the statute of limitations, it may be useful to make some references to the bases for tolling in the complaint. Possible causes of action are described in detail in earlier chapters. Human rights complaints typically also allege parallel municipal torts to protect against the possibility that the court might reject jurisdiction under the federal statutes. Although the list of ATS claims is subject to future development, Sosa sets a 34

FED. R. CIV. P. 8. Despite the apparent applicability of the notice pleading standards of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993), courts have required heightened pleading for cases implicating the qualified immunity of public officials. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 680 (9th Cir. 2001). 36 See Chapter 7 on actionable human rights norms and Chapter 10 on state action. 37 The TVPA requires exhaustion of domestic remedies, TVPA, Section 2(b), and imposes a ten-year statute of limitations, TVPA, Section 2(c). 35

Preparing and Filing a Manageable Case 455

high standard, holding that only widely accepted, clearly defined violations of international law trigger ATS jurisdiction.38 Litigants should assess carefully the international law support for their claims, taking into account the evidence of international law considered relevant in Sosa.39 Advance consultations with international law experts are essential to assess the viability of a claim and to prepare to defend against a motion to dismiss. Given that establishing new claims will be difficult, the consequences of a failed attempt both for the plaintiffs and for the development of ATS jurisprudence should be considered before filing. Damage awards in human rights cases to date have generally amounted to hundreds of millions of dollars. It is not necessary to include a demand for a specific amount in damages. The sample complaints do not do so. However, if a demand for a specific amount in damages is included in the complaint, keep in mind the egregiousness of the claims made against the defendant. Do not hesitate to ask for an amount commensurate with the brutality of the human rights violations at issue. Since punitive damages depend, in part, on the defendant’s resources, include in the complaint any credible evidence of the defendant’s wealth. Finally, absent a compelling reason to the contrary, a trial by jury should be requested. C. LOCATING AND FREEZING ASSETS As human rights cases wind their way slowly through the federal courts, individual defendants have ample time to move their assets out of the United States, to protect themselves against an eventual judgment. Even judgments against very wealthy individuals, therefore, can be difficult or even impossible to collect.40 Preliminary detective work can often identify the prospective defendants’ assets in advance of the filing of the lawsuit, before they are on notice of the expediency of moving or hiding those assets. Identifying assets in advance can also lay the groundwork for a claim that assets have been fraudulently transferred to another person’s name in order to avoid a judgment.41 38

Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). See Chapter 3, Sections B and C. for a discussion of Sosa and sources of international law. 40 See Chapter 21 for a discussion of enforcing judgments. 41 25 AM. JUR. 3D Proof of Facts § 591 (2007). 39

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Modern computer technology has made it increasingly easy to map out an individual’s holdings.42 For a relatively small fee, a private investigator or other firm specializing in asset identification can often provide plaintiffs and their counsel with detailed information about the defendant’s finances. Immigrants from the defendant’s home country may also have information about a defendant’s financial dealings, particularly if the defendant is or was a prominent political figure before coming to the United States. Obviously, before reaching out to community members, the lawyers should consider the danger that the defendant will become aware of the investigation. Unfortunately, once assets have been identified, there is relatively little that can be done to protect against their movement out of the United States. State laws governing the freezing of assets43 usually require that the petitioner post bond, usually in an amount greater than that which is frozen.44 Under the federal rules, plaintiffs can seek a temporary restraining order and a preliminary injunction blocking movement of the assets.45 Such an injunction was granted and upheld on appeal in the consolidated Marcos cases.46 However, the unusual facts of that case indicate how difficult it would be to obtain such an injunction in most cases. The Philippine government had obtained a preliminary injunction freezing Marcos’ assets (and after his death, those of his estate) in a separate lawsuit.47 Later, the government reached a settlement with the estate, and the injunction was dissolved.48 Plaintiffs in the human rights litigation successfully 42

The reader may search the Web for “asset locators.” Under the Federal Rules of Civil Procedure, state law governs provisional remedies, such as seizing property to secure satisfaction of a future judgment. FED. R. CIV. P. 64. 44 For example, while the state of Florida allows pre-judgment attachment where the defendant is removing property from the state or fraudulently disposing of or secreting property to avoid payment of a demand, the Florida attachment statute requires posting a bond double the amount sought in the complaint. FLA. STAT. §§ 76.01-76.38. See generally 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE CIVIL 2D §§ 2932, 2934 (2007). 45 FED. R. CIV. P. 65. 46 In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995). The Hilao opinion explains the complex history of the Marcos litigation. Id. at 1468-69. 47 See Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989). 48 In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1469 (9th Cir. 1994). 43

Preparing and Filing a Manageable Case 457

sought a continuation of the injunction on their own behalf.49 In an interlocutory appeal, the Ninth Circuit affirmed, holding that a preliminary injunction is available to preserve assets for eventual collection in “extraordinary cases”50 : We join the majority of circuits in concluding that a district court has authority to issue a preliminary injunction where the plaintiffs can establish that money damages will be an inadequate remedy due to impending insolvency of the defendant or that defendant has engaged in a pattern of secreting or dissipating assets to avoid judgment.51 The court noted “a pattern and practice” of efforts to transfer or secrete assets. In addition, by the time the appeal was decided, the plaintiffs had already won on the merits after a jury trial. Another example of a successful effort for a preliminary injunction to attach assets involved Colonel Carl Dorelien, a high-ranking member of Haiti’s former military regime, who had won over $3 million in the Florida state lottery.52 After Dorelien was sued for human rights violations committed in Haiti under his command, he attempted to secure all of his lottery winnings instead of waiting for annual payments. Plaintiffs’ attorneys intervened and obtained an order from a Florida state court blocking the transfer of nearly $1 million to Dorelien; the money was then put into an escrow account. Evidence that the defendant had attempted to fraudulently transfer his assets to avoid a judgment in Haiti was a significant factor in obtaining the injunction. In other cases, obtaining a preliminary injunction is likely to be difficult. However, if a substantial pool of assets has been identified in advance, and plaintiffs have any evidence at all that the assets are likely to be moved or hidden, consider requesting a preliminary injunction. 49 Id. at 1469, 1480. The injunction at issue in Hilao applied to the estate of Ferdinand Marcos, the defendant in the human rights litigation. In a separate order, the judge extended that injunction to the Republic of the Philippines, which, with the support of the U.S. government, appealed its inclusion in the injunction. 50 Id. at 1480 (emphasis in original). 51 Id. In some circuits, a preliminary injunction is not available to freeze and preserve assets unrelated to the underlying litigation where the case seeks monetary damages only (rather than equitable relief). Id. 52 Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005). Pleadings filed by the plaintiff in support of the seizure of Dorelien’s assets are available at www.ccr-ny.org/humanrightsbook. For additional information on the case, see the Web site of the Center for Justice and Accountability, http://www.cja.org.

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D. SERVICE AND FILING UNDER SEAL If the defendant is permanently settled in the United States, with a job or other indications that he is not likely to flee, the filing and service of the complaint should be relatively straightforward. Although the defendant may attempt to avoid service, modern rules leave him little room to maneuver. Rule 4(d) of the Federal Rules of Civil Procedure provides for service by mail and shifts to the defendant the costs of alternative service should he refuse to accept the mailed complaint and summons. Rules dictating when service is adequate (dropping or throwing the papers, leaving them with a third party, etc.) are usually governed by state law.53 Where a lawsuit is filed against a corporation or an unincorporated association, service may be effected according to state law or the federal rules.54 If the defendant is in the United States on a temporary basis, there is a greater danger that he might successfully avoid service. In most such cases, personal jurisdiction is based on physical presence, and the defendant must be served while in the United States.55 To protect against the defendant refusing to acknowledge service, steps must be taken to document the service. Videotaping or photographing the service will help eliminate possible challenges to its validity. If that is not possible, it may be useful to position witnesses where they can view the service and obtain the names of other people in the vicinity. The process server and all other witnesses should sign contemporaneous declarations detailing what they observed, so as to make a persuasive record of the events. A videotape of service and thorough declarations from witnesses were extremely important in Doe v. Liu Qi, a case in which service was highly contested.56 As the court noted: From the evidence, it appears that the process server stood about an arms-length away from Defendant Liu [Qi] as he entered a screening area at the San Francisco airport; the process server held out a copy of 53

FED. R. CIV. P. 4(e)(1). FED. R. CIV. P. 4(h)(1). 55 Where personal jurisdiction is obtained through other means, service may be made in another state or even in a foreign country. See FED. R. CIV. P. 4(f) (service upon individuals in a foreign country), 4(k) (territorial limits of effective service). Under Rule 4(f), service of process in a foreign country may be effectuated by means prescribed by international treaty; or, in the absence of such a treaty, in accordance with the law of the foreign country, by a letter rogatory, by personal service, or by mail; or, if all else fails, by means directed by the court. 56 349 F. Supp. 2d 1258, 1274 (N.D. Cal. 2004). 54

Preparing and Filing a Manageable Case 459

the Summons, Complaint and other court papers to the Defendant and said, “Mr. Liu Qi, these are legal documents from the U.S. District Court of California. It’s serious.” . . . When Mayor Liu [Qi] turned away without accepting the papers, the server stated, “You can accept them or you do not have to, but you have been formally served by the U.S. District Court of Northern California.”57 If the defendant learns of the impending lawsuit, he may attempt to hide until he is scheduled to depart. He may also use bodyguards or other security officials to fend off a process server. To minimize service problems, it may be helpful to file a complaint and the accompanying papers (civil cover sheet and summons) under seal, to prevent the defendant from learning of the filing from the press or others in the courthouse.58 Practices on sealed filings vary in different districts. In some districts, the clerk will file the complaint under seal pending a ruling on the motion, which is referred to the judge assigned to the case. In others, the emergency motion judge must sign the order before the clerk will file the complaint under seal. Regardless of the procedure employed, an allegation that the defendant is likely to flee to avoid service should be sufficient to justify filing the complaint under seal. State law may allow the judge to authorize alternative service where justified.59 If a defendant is hiding behind security guards in order to avoid service, for example, it may be possible to obtain a court order allowing substituted service on the guards. Given that Kadic v. Karadzic was filed several weeks after Doe v. Karadzic,60 the defendant and his security guards had become wary of strangers seeking to hand Karadzic a stack of papers. As a result, Kadic’s process server was unable to approach Karadzic. Instead, the plaintiffs’ attorneys obtained an order permitting service on the State Department security detail guarding Karadzic, and the judge ordered the security 57

Id. A sample Ex parte Motion for Leave to File Sealed Complaint, Civil Cover Sheet and Summons, with the accompanying Declaration and Order, are available at www.ccrny.org/humanrightsbook. 59 See, e.g., Klinghoffer v. S.N.C. Achille Lauro, 816 F. Supp. 930, 932-34 (S.D.N.Y. 1993) (authorizing alternative service on the president of the Palestine Liberation Organization under a New York provision that permits service on a natural person “in such manner as the court, upon motion without notice, directs, if service is impracticable” by the standard means set forth in the statute). 60 70 F.3d 232, 246-47 (2d Cir. 1995) (discussing service in both Doe v. Karadzic and Kadic v. Karadzic, which were consolidated on appeal to the Second Circuit). 58

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guards to deliver the papers to Karadzic.61 In subsequent cases, however, the State Department has argued that the federal courts do not have the constitutional authority to order the executive branch to deliver legal papers to a person within its control, a legal argument upheld by one district court.62 Substitute service, however, may also apply to private persons blocking access to a potential defendant: A court could, for example, order hospital officials to deliver a summons to a patient to whom access was denied. 61 62

Id. Feng Suo Zhou v. Li Peng, 286 F. Supp. 2d 255 (S.D.N.Y. 2003).

CHAPTER 18 AFTER THE COMPLAINT IS FILED AND SERVED

The exact path taken by a human rights lawsuit is as unpredictable as that of any major litigation. Defendants’ responses have varied from default to active litigation. In earlier cases under the Alien Tort Statute (ATS),1 most defendants defaulted at some stage of the litigation. More recently, defendants have mounted vigorous defenses that have included motions to dismiss2 and for summary judgment,3 as well as hotly contested jury trials4 and protracted post-discovery settlement negotiations.5 However, even when the defendants ultimately default, they may file motions to dismiss that challenge the plaintiffs’ right to bring the case in U.S. federal court,6 or they may even file a pro se answer.7 This chapter will deal with opposing a motion to dismiss, pro se answers, and defaults. A. MOTIONS TO DISMISS In almost every contested human rights case, defendants file a motion to dismiss. Defenses raised by these motions, discussed in other sections of the book, include: 1

28 U.S.C. § 1350. See, e.g., Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997). 3 See, e.g., Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D. Cal. 2004); Chavez v. Carranza, 413 F. Supp. 2d 891 (W.D. Tenn. 2005) (appeal pending). 4 See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005); Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006). 5 In December 2004, the parties in Doe v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997), announced a settlement and dismissed all claims. Neither side would disclose the details of the settlement. Unocal Settles Rights Suit in Myanmar, N.Y. TIMES, Dec. 14, 2004, at C6. 6 See, e.g., Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (denying motion to dismiss); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment). 7 See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). 2

461

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• subject matter jurisdiction,8 • political question,9 • act of state,10 • international comity,11 • exhaustion of remedies,12 • statute of limitations,13 • forum non conveniens,14 • sovereign immunity of foreign officials,15 • head of state immunity,16 • immunity of U.S. officials,17 • standing,18 • personal jurisdiction.19 Central to the attack on earlier cases under the ATS was the argument that the court had no jurisdiction to decide a case brought by an alien, against an alien, concerning torts committed in a foreign country. Such challenges were uniformly rejected.20 Since the Supreme Court decision in Sosa v. Alva8

See discussions of subject matter jurisdiction in Chapters 1-6. See, e.g., Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. See also Chapter 13. 10 See, e.g., Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995). See also Chapter 13. 11 See, e.g., Bigio v. Coca-Cola Co., 448 F.3d 176 (2d Cir. 2006). See also Chapter 13. 12 See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996). See also Chapter 15, Section C. 13 See Chapter 15, Section A. 14 See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99-108 (2d Cir. 2000). See also Chapter 15, Section B. 15 See, e.g., Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990); Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004). See also Chapter 14. 16 See, e.g., Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) (discussing immunity of then-current head of state); In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1469-72 (9th Cir. 1994) (discussing immunity of former head of state). See also Chapter 14, Section B. 17 See Chapter 11. 18 See, e.g., Estate of Cabello v. Ferna ´ ndez-Larios, 157 F. Supp. 2d 1345, 1355-58 (S.D. Fla. 2001). See also Chapter 9. 19 See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 94-99 (2d Cir. 2000). See also Chapter 10. 20 See, e.g., Trajano v. Marcos (In re Estate of Marcos Litigation), 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 9

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rez-Machain upheld the modern application of the ATS,21 challenges in ATS cases have shifted to more specific attacks on subject matter jurisdiction. These include arguments that a particular claim does not meet the Sosa test22 ; that the Torture Victim Protection Act (TVPA) is the exclusive remedy for claims for summary execution and torture23 ; that there is no aiding and abetting under either the TVPA or ATS24 ; that private parties may not be liable for violations of norms that require state action25 ; and that the positive precedents of the years between Fila´rtiga26 and Sosa do not survive Sosa. Issues that go to subject matter jurisdiction may be raised by the defendant or by the court sua sponte.27 Because ATS claims are based on international law norms, proof of the content of international law is an essential part of establishing subject matter jurisdiction. Under Rule 41 of the Federal Rules of Civil Procedure, an expert can offer an opinion on foreign law, including international law.28 Therefore, expert declarations by international law scholars are a useful response to inquiries into the content of international law norms and 1993); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987), on reconsideration, 694 F. Supp. 707 (N.D. Cal. 1988). 21 542 U.S. 692 (2004). 22 See Chapters 1-3, 7. 23 Enahoro v. Abubakar, 408 F.3d 877, 884-85 (7th Cir. 2005). 24 See Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (appeal pending) (holding that aiding and abetting liability is inconsistent with the TVPA’s requirement that a defendant act “under color of law”). 25 See, e.g., Bowoto v. Chevron Corp., Civ. No. 99-2506, 2006 WL 2455752, at *5 (N.D. Cal. Aug. 22, 2006). The court later reconsidered and held that a private party could be held liable for violating a norm requiring state action. Bowoto v. Chevron Corp., 2007 WL 2349341, at *7 (N.D. Cal. Aug. 14, 2007). 26 Fila ´ rtiga v. Pen˜a-Irala, 630 F.2d 876 (2d Cir. 1980). 27 See also Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *4 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822 (court has responsibility to ensure that it has subject matter jurisdiction). 28 Even where the defendant does not directly attack the issue of whether conduct alleged falls within a norm actionable under the ATS, it may be advisable to present evidence of the content of any norms under which the claims are brought. In Kiobel v. Royal Dutch Petroleum Co., Civ. No. 02-7618, 2006 WL 2942708, at *6 (S.D.N.Y. Sept. 29, 2006) (appeal pending), the court rejected a claim for extrajudicial killing on behalf of a man executed after a ruling from a Special Tribunal that clearly violated international norms. Plaintiffs had not anticipated the ruling and had not submitted an expert affidavit on the relevant international law.

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the availability of forms of liability, such as aiding and abetting or agency, under international law.29 In several cases, particularly those on appeal, plaintiffs have also agreed to the submission of briefs by amici curiae on related issues, especially where the defendant bolstered its argument with such briefs.30 The defendants in human rights litigation may also request that the court seek a statement of interest from the U.S. State Department. Executive submissions are discussed at length in Chapter 16. If the Department of State submits such a statement, the plaintiffs will have an opportunity to respond, and may be permitted to offer statements from other persons knowledgeable about the area. On the appeal in Sarei v. Rio Tinto,31 for example, the plaintiffs asked the court to take judicial notice of the fact that the Papua New Guinea government no longer opposed the litigation; they offered as proof statements and letters by the prime minister and the chief secretary to the government, and a letter from the provincial governor to the U.S. State Department. The statute of limitations is often raised as a defense in a motion to dismiss a human rights claim. This defense is discussed in detail in Chapter 15, Section A. Expert declarations and human rights reports on conditions where the violations occurred may be used to support a claim of equitable tolling. Claims filed under the Anti-Terrorism Act (ATA) or the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA) may be challenged on the grounds that the statutes are unconstitutional; the substantive responses to each of these challenges and others particular to the ATA and FSIA are addressed in Chapters 5 and 6. 29

See, e.g., expert affidavits submitted by plaintiffs in Wiwa (addressing the content of international law norms) and in Bowoto (on aiding and abetting liability under international law). Both are available at www.ccr-ny.org/humanrightsbook. Additional examples are cited in Chapter 3, note 129. Plaintiffs may also argue that federal common law is an appropriate source of law for ATS claims of liability based on aiding and abetting or agency. See Chapter 10. Depending on local practice, submissions to a district court may need to be in the form of an affidavit or declaration rather than an amicus brief. 30 See, e.g., In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 18 (E.D.N.Y. 2005). 31 Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901, at *3 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822.

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B. PRO SE DEFENDANTS When defendants appear but are unrepresented, courts tend to be protective of such pro se litigants. Plaintiffs’ attorneys must take care to avoid the appearance of overreaching or taking advantage of the unrepresented defendant. In the Gramajo cases, for example, the defendant filed answers with the court, but neglected to serve plaintiffs or their attorneys.32 The “answers” contained no address, and plaintiffs had been informed that Gramajo had left the United States and returned to Guatemala. In order to ensure a clean record and to obtain court guidance as to how to proceed, plaintiffs filed a motion asking the court to order Gramajo to serve his answer and to furnish a current address. The order was published in a daily newspaper in Guatemala. When Gramajo failed to respond to the court order, the judge entered default against him. A purported “answer” in Belance v. FRAPH raised a different set of problems.33 In this case against a Haitian paramilitary group, the answer was filed by FRAPH’s New York agent on his own behalf—but he was not a party to the case against FRAPH, an unincorporated association. After a hearing to ensure that FRAPH itself did not appear, the Magistrate Judge ruled that the agent’s purported answer should be disregarded and that default could be entered against the defendant association. The pro se defendant in Abebe-Jira v. Negewo presented different issues.34 The court rejected defendant’s request for court-appointed counsel, and defendant represented himself at trial. Plaintiffs sought to avoid prejudice, refraining from lodging objections or engaging in a searching cross-examination. The trial judge also assisted the defendant in his presentation of evidence. At the close of the case, the court entered a judgment for the plaintiffs and awarded them both compensatory and punitive damages. Pro se defendants do not necessarily ensure that plaintiffs will win a case: in one case, a pro se defendant successfully raised a statute of limitations defense.35 C. DEFAULT JUDGMENTS A defendant who fails to defend a lawsuit will be found to be in default, triggering a process that generally leads to a default judgment on behalf of the 32 33 34 35

See Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). Civ. No. 94-2619 (E.D.N.Y. filed June 1, 1994). 72 F.3d 844 (11th Cir. 1996). Van Tu v. Koster, 364 F.3d 1196, 1200 (10th Cir. 2004).

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plaintiffs. A defendant can default at any point along the way, by failing to comply with a court-imposed obligation such as filing an answer, appearing for deposition, or responding to a court order. Although many of the earlier ATS and TVPA cases ended in defaults, many later cases have been litigated fully. Defaults can occur at many different stages of litigation. A defendant may completely ignore a human rights complaint.36 In one case, however, the defendant initially ignored the case and allowed entry of a default damage award; six months later, he filed a successful motion to set aside the judgment for lack of personal jurisdiction.37 In another case, the plaintiff retained a lawyer and sat for deposition; his lawyer then dropped out and he proceeded pro se until he was deported before trial.38 In Doe v. Liu Qi, the defendants, Chinese local officials, ignored the complaint and the plaintiffs sought a default judgment; Chinese government officials sent a letter to the State Department, and the State Department filed a statement opposing litigation of the case.39 The court conducted an extensive review of the legal issues in the case, despite the fact that the defendant had defaulted. In other cases, defendants have filed pro se answers in which they deny the charges, but have then defaulted.40 In Mushikiwabo v. Barayagwiza, plaintiffs brought ATS claims against the leader of a Rwandan political party who participated in the genocide.41 The defendant did not appear, instead sending a letter claiming he was immune from suit because he was sued during a diplomatic visit to the United States.42 The court granted the plaintiffs’ motion for default judgment, reasoning that the Rwandan government had waived any immunity that the defendant might assert.43 Others have defaulted after losing motions to dismiss the complaint, including the defendant in Fila´rtiga.44 36

See, e.g., Todd v. Panjaitan, Civ. No. 92-12255 (D. Mass. Oct. 26, 1994) (defendant entered no appearance in the litigation); Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004) (same). 37 Doe v. Lumintang, Civ. No. 00-674 (D.D.C. Nov. 10, 2004), available at www.ccrny.org/humanrightsbook. 38 Reyes v. Grijalba, Civ. No. 02-22046 (S.D. Fla. filed Aug. 12, 2002). 39 349 F. Supp. 2d 1258 (N.D. Cal. 2004). 40 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). 41 1996 WL 164496 (S.D.N.Y. 1996). 42 Id. at * 2. 43 Id. 44 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). See also Forti v. SuarezMason, Civ. No. 87-2058 (N.D. Cal. 1990) (final judgment). Two defendants have been held in default after refusing to appear for their own depositions. Kadic v. Karadzic, Civ.

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A default judgment may not end the litigation. As mentioned above, the defendant in Lumintang successfully challenged a default judgment, arguing that the issuing court did not have personal jurisdiction over him. In Tachiona v. Mugabe, a case arising out of Zimbabwe, the U.S. government intervened after the court had entered a default judgment against ZANU-PF, the political party of Zimbabwe President Robert Mugabe.45 The United States asked the court to reconsider the entry of a default judgment, challenging the means by which process had been served, but the court denied reconsideration.46 On appeal, the circuit adopted the U.S. government’s reasoning and remanded the case to the district court with instruction to dismiss the case against ZANU-PF.47 Under Rule 55 of the Federal Rules of Civil Procedure, default is a two-step process. First, an entry of default is filed, indicating the defendant has failed to “plead or otherwise defend” the action. This triggers the presumption that the well-pleaded allegations of the complaint are true. Second, the court enters a default judgment, setting the amount of money owed to the plaintiffs. 1.

Entry of Default

If the defendant fails to file an answer or other response to the complaint, plaintiffs can immediately initiate the default process by filing a motion asking the clerk for an “entry of default,” an automatic process based on the defendant’s failure to “plead or otherwise defend” the action.48 If the default is based on the failure to comply with some other procedural obligation, it may be necessary to prepare the ground through a preliminary motion. As discussed above, for example, in the cases against Guatemalan General Gramajo, the judge entered default after the defendant failed to comply with an order that he supply his current address.49 In Paul v. Avril, plaintiffs No. 93-1163 (S.D.N.Y. June 13, 2000) (order entering default); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994). In Trajano v. Marcos (In re Estate of Marcos Litigation), 978 F.2d 493 (9th Cir. 1992), the daughter of Ferdinand Marcos unsuccessfully appealed the entry of a default judgment against her to the Ninth Circuit. 45 216 F. Supp. 2d 262 (S.D.N.Y. 2002). The court had earlier dismissed claims against Mugabe and other government officials. Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2002). 46 Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp. 2d 383 (S.D.N.Y. 2002). 47 Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004). 48 FED. R. CIV. P. 55. 49 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).

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made a successful motion for entry of default after the defendant failed to appear for a court-ordered deposition.50 However obtained, the entry of default cuts off the defendant’s option to respond to the allegations of the complaint, which are assumed to be true. From that point on, the defendant would have to file a motion to set aside the default in order to reenter the lawsuit.51 2.

Motion for Default Judgment

After obtaining the entry of default, plaintiffs must prepare a motion for default judgment asking the judge to set damages and issue a money judgment against the defendant. The papers filed in support of the motion for default judgment must address all outstanding legal and factual allegations. If all issues are addressed thoroughly, the resulting legal memorandum and factual declarations often amount to a bulky submission. This packet, however, serves a dual purpose: In addition to supporting the motion for default judgment, the submission constitutes a record of the defendant’s human rights abuses and of the ordeal suffered by his victims. Most legal objections to the complaint are waived by the defendant’s default, including challenges on grounds such as statute of limitations or forum non conveniens.52 Nevertheless, subject matter jurisdiction, including a claim of foreign sovereign immunity, remains at issue: it concerns the court’s power to decide the case and can never be waived.53 Therefore, issues such as immunity and subject matter jurisdiction should be fully briefed, particularly if an issue has not yet been decided in the circuit. For example, given that courts have reached inconsistent results on claims for cruel, inhuman, or degrading treatment,54 a case including this cause of action should brief its validity under the ATS. As in the Doe v. Liu Qi case described above, particular judges may decide to reach even issues that other courts consider to be conceded by the defendant’s default.55 50

901 F. Supp. 330 (S.D. Fla. 1994). FED. R. CIV. P. 55(c) (“For good cause shown the court may set aside an entry of default.”). 52 FED. R. CIV. P. 12(h)(1), (2) (listing defenses that are waived if not raised in motion to dismiss or answer or other responsive pleading). 53 FED. R. CIV. P. 12(h)(3). 54 See Chapter 7, Section E.7. 55 349 F. Supp. 2d 1258 (N.D. Cal. 2004). 51

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Finally, the brief and supporting documents must address the key issue pending on a motion for default judgment: the amount of damages, both compensatory and punitive. Plaintiffs’ brief should address the legal questions surrounding the damage award, including choice of law, the categories of damages that are compensable, and the availability of punitive damages.56 To establish the facts necessary for a damage award, plaintiffs should submit factual declarations setting forth both the damages they have suffered and the egregiousness of the defendant’s conduct.57 In order to set the stage for these claims, it is valuable to review the facts of the case and much of the evidence supporting the plaintiffs’ claims. Judges are much more likely to consider substantial damage awards if they are impressed by the solidity of the plaintiffs’ case. As always, keep in mind that the subject matter of these lawsuits is likely to be quite removed from a judge’s experience. On default, the judge may need to be reassured that the plaintiffs could have proven their case in court had it gone to trial. Further, all of the details of a plaintiff’s ordeal and the defendant’s culpability are relevant to the determination of punitive damages. In support of the motion for default judgment, then, be prepared to submit declarations from each of the plaintiffs, as well as any documents or declarations that support the damage claim. These could include medical bills and doctors’ reports, therapists’ evaluations, declarations from lay people concerning the harm suffered by the plaintiff,58 and an economist’s evaluation of lost lifetime earnings. Documentation of the egregiousness of the defendant’s conduct can include declarations from human rights experts about the defendant’s role in this and other human rights abuses. These serve the dual purpose of justifying a substantial award of punitive damages and making clear that plaintiffs have extensive evidence of the defendant’s responsibility for the underlying torts. In both the Xuncax59 and Avril60 defaults, plaintiffs submitted multiple declarations about the defendants’ roles in widespread human rights abuses, from human rights observers and from experts on the military structure in their respective 56

See Chapter 21 on remedies. See Chapter 21 for a discussion of proving both compensatory and punitive damages. 58 Supporting documentation in the case of Sister Dianna Ortiz, for example, included two declarations from members of her religious order describing the impact of her kidnaping and torture. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). 59 Id. 60 Paul v. Avril, 901 F. Supp. 330, 331 (S.D. Fla. 1994). 57

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countries. In support of Dianna Ortiz’s claim against defendant Gramajo, an additional declaration addressed the history of violent repression of the church in Guatemala—to settle any possible doubts about whether such brutal abuse of a nun really could have happened in that country. 3.

A Hearing on the Default

Although the written declarations submitted in support of a motion for default judgment are generally sufficient to support such a judgment, the court has the authority to conduct a hearing and receive testimony on the matter61 and even to conduct a jury trial as to damages.62 After the default in Doe v. Karadzic,63 the plaintiffs requested and the court granted a hearing on damages before a jury; the trial judge acted in place of the absent defendant to ensure that plaintiffs adhered to the federal procedural and evidentiary rules. Plaintiffs may wish to request a hearing, with or without a jury. Such a hearing gives the plaintiffs an opportunity to tell their story, something they will otherwise lose, since the case will not proceed to trial. At the same time, it ensures that the judge will view the case as one involving real human beings who have suffered egregious injuries. Finally, an oral hearing enables plaintiffs’ attorneys to respond to any lingering questions about the law or facts that have not been anticipated in their papers. Such hearings were granted in the Fila´rtiga64 and Forti65 cases, and more recently in the Karadzic cases,66 Lumintang,67 Saravia,68 and Mehinovic.69 61

FED. R. CIV. P. 55(b)(2) (“If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.”). 62 Although there is no constitutional or statutory right to a jury trial, the judge may, in the exercise of discretion, order a jury determination of damages. 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE CIVIL 2D §§ 2932, 2934 (2007). 63 Civ. No. 93-0878, 2001 WL 986545, at *1 (S.D.N.Y. Aug. 28, 2001). 64 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). 65 Forti v. Suarez-Mason, Civ. No. 87-2058 (N.D. Cal. 1990) (final judgment). 66 Doe v. Karadzic, Civ. No. 93-0878 (S.D.N.Y. Aug. 28, 2001); Kadic v. Karadzic, Civ. No. 93-1163 (S.D.N.Y. June 13, 2000). 67 Doe v. Lumintang, Civ. No. 00-674 (D.D.C. Nov. 10, 2004). 68 Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004). 69 Mehinovic v. Vuckovic, 198 F. Supp. 2d 1332 (N.D. Ga. 2002).

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In Mehinovic, the defendant defaulted and left the jurisdiction just days before the trial; the district judge permitted two of the plaintiffs to testify by telephone from The Hague, where they were testifying before the International Criminal Tribunal for the former Yugoslavia. In default proceedings, judges may be willing to make such accommodations for witnesses, considering issues of witness confidentiality and convenience. The fact of a default by the defendants does not ensure that the court will grant a default judgment. In Doe v. Liu Qi, after the defendants failed to file a responsive pleading, the plaintiffs moved for a default judgment in two cases brought by members of the Falun Gong against local Chinese officials.70 As noted earlier, the court, sua sponte, requested a Statement of Interest from the U.S. Department of State. The court granted default judgment on some of the claims, but declined to do so on others, holding, for example, that a daughter lacked standing to bring a claim for torture on behalf of her living parents. The court determined that one day of incarceration and interrogation, during which plaintiffs were pushed, shoved, hit, and placed in a chokehold, was not torture, but it found that other instances with more prolonged incarceration and more severe abuse did constitute torture. Further, the court denied default judgments on claims such as genocide and crimes against humanity, concluding that those claims would require findings of systemic and widespread practices rather than factual allegations pertaining to individual claims. 70

349 F. Supp. 2d 1258 (N.D. Cal. 2004).

CHAPTER 19 DISCOVERY

Although discovery in a case brought under the human rights statutes is generally similar to that in other federal civil litigation, special problems often arise.1 Human rights cases regularly involve events in a foreign country, government officials here and abroad, a hostile court system in the foreign state, and danger to those who seek justice. All of these factors burden the discovery process. The usefulness of the discovery process depends both on the existence of discoverable materials and on the likelihood that the defendant will actively defend the lawsuit. A defendant who has few assets in the United States or has hidden what he does have may have little incentive to cooperate in discovery, because a default judgment will not hurt his pocketbook.2 However, where the defendant has a presence in the United States, especially when the defendant is a corporation, discovery may be an essential tool in proving liability. The focus of this chapter is discovery, while the next chapter addresses issues of proof. However, given the difficulties involved in proving the violent, traumatic events underlying most human rights cases, it is important throughout the discovery process to consider how the information obtained will be used to prove the allegations of the complaint and whether it will be admissible.3 This chapter offers an overview of some of the unusual issues that arise during discovery in human rights cases. The first four sections address standard discovery mechanisms as applied to human rights litigation: pre-filing investigation; pre-merits and jurisdictional discovery; and merits discovery from parties and third parties. Sections E and F then discuss two complicated discovery categories that are often important in human rights cases: discovery from the 1

This chapter assumes familiarity with the applicable Federal Rules of Civil Procedure and local federal court rules. A good source for up-to-date guidance on discovery rules is JAY E. GRENIG & JEFFREY S. KINSLER, HANDBOOK OF FEDERAL CIVIL DISCOVERY AND DISCLOSURE (2d ed., current through 2006 Update). 2 A default judgment may harm the defendant’s reputation or hurt in other ways, but this may not be enough to convince the defendant to spend resources to litigate a case. 3 Where information is obtained abroad, it is particularly important to consider in advance how the evidence will be authenticated. See Fed. R. Evid. 901. 473

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U.S. government and foreign discovery. Section G briefly notes the importance of expert discovery. Section H addresses discovery requested by the defendants from the plaintiffs. Section I offers a separate discussion of defendants’ efforts to obtain discovery from human rights experts. This topic is covered separately because, although human rights groups have been essential to the development of human rights litigation, their role in litigation may create a tension between the need to guarantee the confidentiality of their informants and the dictates of federal discovery. The final section of the chapter deals with protective orders, sought either by plaintiffs who might be endangered by discovery or by defendants who prefer to keep information confidential. A. OUT-OF-COURT INVESTIGATION Out-of-court investigation both prior to filing a complaint and during the course of litigation is crucial in international human rights cases. Court-supervised discovery from the defendant or the foreign government cannot be counted upon. While out-of-court discovery is particularly valuable if the defendant flees and the court enters a default on liability,4 informal discovery is also important in cases that are fully defended.5 In cases where the defendant is a natural person who resides outside the United States, counsel for plaintiffs should assume that the case will need to be proven without documents or deposition testimony from the defendant. Counsel should plan to conduct thorough document searches, hire investigators, and interview a wide range of human rights experts and witnesses. Fortunately, where a defendant’s acts are notorious, expert witnesses and documentary proof are usually available to demonstrate the defendant’s responsibility for human rights abuses. For example, prior to suit in Xuncax v. Gramajo,6 the plaintiffs interviewed a number of human rights experts to determine precisely the areas in Guatemala where Gramajo operated and his role in the military structure that carried out gross human rights abuses; they also gathered numerous documents about Gramajo and his military career. At that point, the plaintiffs had sufficient evidence to prove the case even though Gramajo and the Guatemalan government never furnished any documents or other evidence. In Paul v. Avril,7 4

Default judgments are discussed in Chapter 18, Section C. See also Chapter 17, discussing pre-filing investigation. 6 886 F. Supp. 162 (D. Mass. 1995). 7 812 F. Supp. 207 (S.D. Fla. 1993) (decision denying motion to dismiss); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment). 5

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plaintiffs’ counsel collected extensive information about the period of Avril’s dictatorship and interviewed human rights experts and experts on the command structure of the Haitian military. Counsel may also consider hiring an investigator to locate the defendant and to find any assets in the United States. Finding assets prior to suit is particularly important where the defendant is living abroad or is a foreign national able to relocate outside the United States. Once the suit is filed, those assets—whether a house, bank account, or stocks and bonds—will probably be hidden away or sold.8 Even in cases where the defendants are unlikely to simply default, such as cases against corporate defendants, informal discovery may be critical to success. In Doe v. Unocal Corp., for instance, a human rights group with a history of work along the border between Burma and Thailand produced a human rights report that was published before the litigation was commenced.9 Its findings provided important background for the litigation that followed. In Saleh v. Titan,10 prior to formal discovery, plaintiffs’ counsel reviewed volumes of documents concerning U.S. conduct in detentions in Iraq that had been produced in response to Freedom of Information Act (FOIA) litigation.11 This information was used to prepare the complaint and direct out-of-court investigation and to oppose a motion to dismiss. As in Saleh, FOIA requests for information are important sources of discovery for any case involving, even indirectly, the conduct of the U.S. government.12 Where a human rights case 8

See discussion of freezing assets in Chapter 17, Section C. 963 F. Supp. 880 (C.D. Cal. 1997) (denying motion to dismiss). For the full procedural history of the Unocal litigation, see Chapter 1, note 66. The report, Total Denial, is available at http://www.earthrights.org/blogsection/publications. 10 Civ. No. 05-1165 (D.D.C. 2005), decision on motion to dismiss at 436 F. Supp. 2d 55 (D.D.C. 2006). 11 American Civil Liberties Union v. Department of Defense, 389 F. Supp. 2d 547 (S.D.N.Y. 2005). 12 For example, Emmanuel Constant, the defendant in Doe v. Constant, Civ. No. 0410108 (S.D.N.Y. Dec. 21, 2004), and the leader of FRAPH, a Haitian paramilitary death squad, was a paid U.S. intelligence informant. Stephen Engelberg, A Haitian Leader of Paramilitaries Was Paid by C.I.A., N.Y. TIMES, Oct. 8, 1994, at 1; Allan Nairn, Behind Haiti’s Paramilitaries: Our Man in FRAPH, 259 THE NATION 458 (1994). General Hector Gramajo, defendant in Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), had close ties to the Central Intelligence Agency, Tim Weiner, U.S. Judge Orders ExGuatemala General to Pay $47.5 Million, N.Y. TIMES, Apr. 13, 1995, at 13, and was also a paid U.S. intelligence informant, Allan Nairn, Murder as Policy, 260 THE NATION 547 (1995). 9

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involves foreign officials or corporations operating abroad, the U.S. government may also have relevant information.13 B. PRE-MERITS OR JURISDICTIONAL DISCOVERY Defendants who choose to defend a case rather than default often file a motion to dismiss the complaint that raises factual issues, including lack of personal or subject matter jurisdiction, immunities, or forum non conveniens, all of which are discussed in prior chapters. Discovery may be necessary to address these issues. Defendants likely will argue that no discovery should occur while motions to dismiss are pending. A court can stay general factual discovery, but should permit limited discovery when the issues raised by the motion to dismiss turn upon disputed facts—or, alternatively, should postpone decision on the issues raised by the motion until after discovery.14 In Wiwa v. Royal Dutch Petroleum Co., for example, the corporate defendants’ moved to dismiss, arguing that the court lacked personal jurisdiction over them and that either the Netherlands or England, the headquarters of the defendant corporations, would be a more appropriate forum.15 The parties engaged in discovery concerning the nature of the defendants’ contacts with New York, relevant to personal jurisdiction; the location of documents and witnesses; and expert opinions on foreign law—all elements relevant to forum non conveniens. Plaintiffs can use information about the defendants’ U.S. contacts obtained through out-of-court discovery to convince the court that jurisdictional discovery is more than a fishing expedition. 13

For example, in Unocal, telegrams from the U.S. embassy reported communications from Unocal concerning the role of the Burmese military in the pipeline project to which Unocal was a party. 14 In general, a motion to dismiss should be converted to a motion for summary judgment if the court considers matters outside the pleadings. FED. R. CIV. P. 12(b). In reviewing a motion to dismiss under Rule 12(b)(1), however, a court may consider materials beyond the pleadings, including affidavits, exhibits, and discovery materials, to determine if subject matter jurisdiction exists. Harrison v. Potter, 323 F. Supp. 2d 593, 598 (S.D.N.Y. 2004). The court may also permit “limited discovery with respect to the jurisdictional issue.” Brocsonic Co., Ltd. v. M/V “Mathilde Maersk,” 120 F. Supp. 2d 372, 375 (S.D.N.Y. 2000). 15 226 F.3d 88 (2d Cir. 2000) (reversing dismissal for forum non conveniens), on remand Civ. No. 96-8386, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002) (denying motion to dismiss).

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The court may also permit limited discovery to test a defendant’s claims to immunity.16 In cases involving immunity defenses, discovery is likely to be particularly contested, because sovereign immunity is considered a protection from the burdens of litigation, including discovery.17 Nevertheless, the court should permit limited discovery about the basis for defendants’ claims of immunity.18 Moreover, if the immunity claim is without evidentiary support, it should not be used to delay discovery on the merits. In Avril, for instance, the defendant argued that discovery should be stayed until his claim to immunity was resolved. Plaintiffs responded that because Avril was no longer a government official and Haiti had waived any possible residual immunity, the rationale for not allowing discovery—interference in the official functions of the defendant—did not apply, and, in any case, the immunity claim was frivolous.19 The court agreed that Avril had no immunity, although it never ruled on the request for a stay of discovery.20 C. MERITS DISCOVERY UNDER THE FEDERAL RULES The federal rules require each party to make an initial disclosure identifying, among other things, witnesses and documents relevant to the parties’ case.21 The parties must also meet and confer on a discovery plan.22 The timing of this obligation is controlled by the court’s scheduling order and by Federal Rule of Civil Procedure 26. No discovery is permitted prior to this time, unless allowed by local rule, order of the court, or agreement of the parties.23 16

See, e.g., Reiss v. Societe Centrale du Groupe Des Assurances Nationales, 235 F.3d 738, 748 (2d Cir. 2000) (“We think it essential for the district court to afford the parties the opportunity to present evidentiary material at a hearing on the question of [Foreign Sovereign Immunities Act] jurisdiction.”). 17 Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990); Belhas v. Ya’alon, 466 F. Supp. 2d 127, 133 (D.D.C. 2006). 18

Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990); Brocsonic Co., Ltd. v. M/V “Mathilde Maersk,” 120 F. Supp. 2d 372, 375 (S.D.N.Y. 2000); Greenery Rehabilitation Group, Inc. v. Sabol, 841 F. Supp. 58, 62 (N.D.N.Y. 1993) (quoting Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). See also Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004). 19 The Foreign Sovereign Immunities Act (FSIA) is discussed in Chapter 5. 20 Paul v. Avril, 812 F. Supp. 207, 210 (S.D. Fla. 1993). 21 FED. R. CIV. P. 26(a)(1). 22 FED. R. CIV. P. 26(f). 23 FED. R. CIV. P. 26(d). The local rules of many federal courts have modified these rules, so it is important that they be checked.

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In circumstances other than a challenge to subject matter jurisdiction, a request for a delay in discovery is often a dilatory tactic. This is particularly problematic when the defendant absconds after losing a motion to dismiss, as has happened in several human rights cases, making discovery impossible. Where the case does not raise any novel challenges to the court’s jurisdiction, there is no basis to delay general fact discovery. In a human rights case against individuals, counsel must make an initial assessment about the likelihood that the defendants will leave the United States at some point during the litigation and cease to cooperate in discovery. The defendant may choose to leave or the United States may deport him, as it did with the defendant in Reyes v. Grijalba,24 or extradite him to his home country, as it did with Suarez-Mason.25 Clearly, it is unlikely that a corporate defendant with a continuous presence in the United States will leave. There are also individuals with strong interests in the United States who will stay throughout the litigation. Counsel’s understanding of whether discovery will be completed will affect the choice of discovery options. If discovery is likely to be cut off by the absence of the defendant, counsel should consider seeking a court order under Federal Rule of Civil Procedure 30, which allows early depositions if “the person to be examined is expected to leave the United States and be unavailable for examination in this country unless deposed before this time.”26 Plaintiffs were successful in obtaining depositions of both Pen˜a-Irala and Suarez-Mason while they were in jail awaiting deportation and extradition. Even if the defendant is residing in the United States at the time of the filing of the lawsuit, it may be important to obtain an early deposition. In Avril, for example, the defendant fled to Haiti after losing a motion to dismiss, although his attorneys continued to defend against the lawsuit.27 Subsequently, plaintiffs noticed Avril’s deposition in Miami, where he resided when the case was filed 24 See Alfonso Chardy, Ruling Details Torture Claims, MIAMI HERALD, June 20, 2004 (describing deportation order for Juan Lo´pez Grijalba, defendant in Reyes v. Grijalba, Civ. No. 02-22046 (final judgment, Mar. 31, 2006, available at www.ccr-ny.org/ humanrightsbook)). This article and further information on the Reyes case are available at http://www.cja.org/cases/grijalbadocs.shtml. 25 Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987). 26 As noted above, early discovery can also be requested if there are questions regarding personal jurisdiction or subject matter jurisdiction. Discovery would be limited to exploring those issues. 27 Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994).

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and where he had been served. He resisted, demanding that the deposition be taken in Haiti and claiming that he was unable to obtain a visa to the United States. There is some legal support for the argument that when the defendant resides at a substantial distance from the district in which the case is pending, plaintiffs should be required to depose him where he lives.28 But the location of a deposition is in the court’s discretion, and the courts recognize an exception to the place-of-residence rule for exceptional circumstances. In Avril, plaintiffs established that it was too dangerous for them to travel to Haiti and depose Avril during the coup period; that Avril had voluntarily left the district after the case was served; and that he had never even applied for a visa, although plaintiffs had contacted the embassy to ensure that it would be granted if he had applied. Under these circumstances, the court ordered him to travel to Miami for the deposition. When he refused to do so, the court entered a default judgment. In cases against multinational corporations, expatriate management personnel rotate assignments frequently and often make trips to the corporate headquarters.29 Counsel should attempt to arrange depositions during trips to the United States or in other locations where a number of management deponents may be gathered. If counsel concludes that there will be full discovery, depositions generally should wait until later in the discovery process. In cases involving corporate defendants, a request for production of documents is a good place to begin.30 Documents produced by defendants can identify potential witnesses as possible deponents and can help to shape the questions to be propounded in future depositions. A party served with a request for documents must produce responsive documents within the party’s possession, custody, or control.31 Courts have required corporate defendants to produce documents in the 28 See, e.g., Six W. Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001); Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987). 29 There is a general presumption that the depositions of a corporations’ officers and agents should be taken at the corporate headquarters or the usual place of business. Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005). However, some case law supports a defendant’s claim that the deponent should be deposed near his or her residence or principal place of work. See, e.g., Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minnesota, 187 F.R.D. 578, 587-88 (D. Minn. 1999). 30 FED. R. CIV. P. 34. 31 Id.

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possession of their subsidiaries located outside the United States in both Wiwa32 and Bowoto v. Chevron.33 Interrogatories can be useful in obtaining certain types of information, but they must be tightly drawn to obtain anything meaningful. Their number is also specifically limited by federal and local rules.34 The court has discretion to expand the number of interrogatories permitted and is likely to do so in complex litigation. As in any case, interrogatories should not contain open-ended, general questions, but should ask for factual information that requires precise answers, such as: each job or professional position the defendant has held, including title and job description; all persons with knowledge of the allegations of the complaint; location and description of documents that tend to prove or disprove the allegations of the complaint; a listing and location of assets.35 Later in discovery, it may be useful to propound “contention” interrogatories that focus on the bases for the defendant’s defenses. In cases involving corporate defendants, counsel should consider the use of Federal Rule of Civil Procedure 30(b)(6) to require the defendants to produce for deposition persons who are able to provide information available to the corporation on the topics designated in the notice of deposition. Witnesses testifying pursuant to Rule 30(b)(6) can provide information on the structure of corporation, the type of records maintained by the corporation, and the identity of potential witnesses with firsthand knowledge of relevant facts. A Rule 30(b)(6) witness may also be asked about the corporation’s internal procedures for obtaining authority to act and for reporting the types of incidents that gave rise to the claims involved. Another useful topic of inquiry may concern the corporation’s code of conduct and the procedures for implementing the code and evaluating compliance. Because the information obtained from the Rule 30(b)(6) witness can help determine whom to depose and what documents to request, it is useful to notice Rule 30(b)(6) witnesses early in the discovery process. Defendants have many ways to frustrate discovery. Defendant Avril responded to an interrogatory requesting the location of documents by claiming that, because all relevant documents were in Haiti in possession of the Haitian 32 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000). Discovery in Wiwa was coordinated with discovery in Kiobel v. Royal Dutch Petroleum Co., Civ. No. 02-7618 (S.D.N.Y. filed 2002). 33 Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D. Cal. 2004). 34 FED. R. CIV. P. 33. 35 Sample interrogatories from Paul v. Avril and Bowoto v. Chevron are available at www.ccr-ny.org/humanrightsbook.

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military and judiciary, he could not secure access to them. The defendant’s objections may force the plaintiff to go through a time-consuming motion to compel. Before doing so, it is important to follow local rules requiring efforts to resolve discovery disputes prior to filing a motion. Whether the negotiations are conducted through face-to-face meetings or via the telephone, counsel should confirm in writing any agreements reached with opposing counsel. It is also necessary to become familiar with the form of a motion to compel required in the particular jurisdiction, as these vary widely. In depositions, defendants can claim not to remember or assert that, as high-ranking officers in the chain of command or as high-level corporate executives, they did not know of or authorize the actions of lower officials. While these responses may arise in any civil litigation, in international human rights cases involving individual defendants, it is more difficult to impeach the defendants if they give such answers. In such cases, it is unlikely that documents will be produced by the government connected to the abuse, and it is unusual to obtain evidence from a witness who actually saw or heard the defendant give orders. For this reason, human rights experts and others with knowledge of the structure of the military play a vital role. Reports by human rights organizations or by the U.S. Department of State, and newspaper articles may also provide evidence of what the defendant knew or should have know about the pattern of human rights abuses. Where the defendant is a corporation, it is quite likely that there will be documents that concern the specific event at issue or establish a consistent set of corporate procedures that should govern the incident. Corporate defendants will also have documents that detail the relationships among their various parent corporations in the United States and subsidiaries abroad. For example, to prove an agency relationship, the court in Bowoto considered evidence of the degree and content of communications between the subsidiary operating abroad and the U.S.-based parent, including telephone records obtained from a document request, which reflected the volume of communications around the incidents at issue.36 Requests for admissions37 are an often-overlooked means of discovery that may simplify the process of presenting evidence to a jury. For example, in a corporate case where the relationship between the parent corporation and the operating subsidiary is at issue, admissions may summarize evidence of the 36 37

Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1343-44 (N.D. Cal. 2004). FED. R. CIV. P. 36.

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services the corporate defendant provides to the subsidiary, without burying the jury in piles of contracts and transaction records. D. THIRD-PARTY DISCOVERY The Federal Rules of Civil Procedure permit counsel for either party to serve a subpoena on a third party for document production or a deposition.38 The process of obtaining documents from private parties in human rights cases is no different from that in other federal litigation. However, a defendants’ discovery from parties such as human rights organizations and investigators present special problems, which are discussed below in Section H. E. DISCOVERY FROM THE U.S. GOVERNMENT The U.S. government is likely to be a unique source of information in human rights cases, given its ability to monitor events in foreign countries as well as in the United States. Information is available from the government even in the absence of formal discovery. For example, the Bureau of Democracy, Human Rights, and Labor, a division of the Department of State, issues annual country reports on human rights practices. The government is also subject to formal discovery. Nevertheless, it is very difficult to obtain information that is not publicly available in a meaningful and unredacted form, because the government is often hostile to the release of information. If the government is a party, discovery begins as in any case. If it is not a party, documents or testimony39 from government agencies can be obtained by subpoena pursuant to Federal Rule of Civil Procedure 45. In a 2006 decision, the D.C. Circuit rejected the government’s claim that it was not subject to subpoena under Rule 45, which applies to “person[s].” The court held that “[t]he term ‘person’ as used in the Federal Rules of Civil Procedure consistently means not only natural persons and business associations but also governments, including the United States.”40 38

FED. R. CIV. P. 45. If testimony is desired, a notice of deposition must be served. The subpoena issues from the district court in which the deposition is to be taken. FED. R. CIV. P. 45(a)(2). 40 Yousuf v. Samantar, 451 F.3d 248, 250, 257 (D.C. Cir. 2006). Plaintiffs in Yousuf sought documents from the U.S. Department of State related to human rights abuses committed by the Somali armed forces, the structure of the Somali government, and interaction between the United States and representatives of the Somali government. 39

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While the government is subject to discovery, several doctrines permit it to withhold information.41 Although the U.S. government may have a legitimate need to protect its sources or surveillance methods, government officials often seek to protect themselves and to conceal the fact that U.S. agents had knowledge of human rights abuses or that egregious human rights abusers were on the U.S. payroll.42 It may be useful to subpoena documents from a variety of agencies that regularly gather information in foreign countries. These include the Department of State, U.S. embassies abroad, the National Security Agency, the Central Intelligence Agency, the Department of Defense, the Defense Intelligence Agency, the Immigration and Naturalization Service, and the Federal Bureau of Investigation. Counsel should keep in mind, however, that the intelligence and military agencies are most likely to claim that information cannot be released. Most agencies have issued regulations setting forth what they claim a subpoena must contain before they will comply.43 Codified in the Code of Federal Regulations, these regulations generally require a statement as to the nature and relevance of the information sought. A schedule is usually attached to the subpoena that sets forth the nature and relevance of the information sought, definitions, the time period, and the documents requested.44 It is important to narrow the time frame and to be as specific as possible regarding the documents sought. No matter how specific and narrow the subpoena, however, the agencies will probably reply with a letter objecting to production of the materials. The written objection satisfies the agencies’ legal obligation, shifting the burden of obtaining a court order to 41

The state secrets defense is described in Chapter 11, Section F. For a useful overview of other defenses used by the U.S. government to resist requests for information, see CIVIL ACTIONS AGAINST THE UNITED STATES, ITS AGENCIES, OFFICERS AND EMPLOYEES ch. 7 (2d ed. 2003). 42 For example, the head of the paramilitary group sued in Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Dec. 21, 2004), was a paid CIA informant. See supra note 12. 43 The agencies cite United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), for their authority to impose these additional requirements. However, 5 U.S.C. Section 301, which authorizes the promulgation of such regulations, does not permit those regulations to authorize the withholding of information or records from the public. 44 The subpoena and schedule in Belance v. FRAPH, Civ. No. 94-2619 (filed July 1, 1994), and the Touhy request to the State Department in Yousuf v. Samantar are available at www.ccr-ny.org/humanrightsbook.

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compel compliance back to the party serving the subpoena.45 Objection letters from the agencies are likely to assert similar, boilerplate excuses for non-compliance: retrieval of the documents is an undue burden; the requests are overbroad and not limited as to time period; the subpoena calls for classified and other privileged information; or the subpoena does not comply with their Touhy46 regulations.47 After receipt of such a letter, counsel for plaintiffs can generally begin negotiations with the agency.48 Negotiation with an eye on the calendar is recommended, imposing strict deadlines for agency replies and repeating the threat to seek a court order, in order to resist the agencies’ tendency to delay. If and when the negotiations break down, a motion to compel can be filed immediately. Once in court,49 the agency will have the burden of proving that the request is burdensome.50 The court will balance the interests at stake, including the relevance of the requested information, the need for the documents,51 the breadth of the document request, the time period covered, the particularity with which the documents are described, and the burden on the agency.52 Relevance and need receive particular weight in this balancing process. Counsel should respond to the agency’s arguments with a healthy dose of skepticism. In Linder v. Calero, for example, one agency claimed it needed to search for the documents manually and that it would take 27 “man-years” to find 45

FED. R. CIV. P. 45(c)(2)(B). The agencies must reply within 14 days of service of the subpoenas. Id. 46 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). 47 An example of a typical agency response to a subpoena in an ATS and TVPA case, received in Belance v. FRAPH, is available at www.ccr-ny.org/humanrightsbook. 48 A court is unlikely to grant a motion to compel compliance until opposing counsel have attempted to negotiate a resolution. 49 A motion to compel compliance with a Rule 45 subpoena must be filed in the court where the subpoena was issued. FED. R. CIV. P. 37(a)(1). 50 Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). 51 The need for the documents played an important role in litigation over compliance with third-party subpoenas in Linder v. Calero, Misc. No. 94-146 (D.D.C. Aug. 2, 1994). In ordering production from government agencies, the judge noted that the plaintiffs had been unable to obtain documents from the defendants. Id., slip op. at 3, available at www.ccr-ny.org/humanrightsbook. 52 Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); United States v. International Bus. Machs. Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979).

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and redact them.53 However, eventually the agency was forced to admit that almost all the records were computerized. The agencies will often argue that most of the records are classified. That is a speculative and insufficient answer. The agency should be required to retrieve the documents and make formal claims of privilege document by document.54 Under United States v. Reynolds, the head of the agency must personally examine the documents and claim the privilege.55 Nor does the claim that the agency is a non-party give it any exemption from discovery. To the contrary, when the government agency is a non-party, it may have an even greater obligation to produce the documents than a private person.56 The government is likely to invoke the state secrets doctrine,57 asserting that “a reasonable danger exists that disclosing the information in court proceedings would harm national security interests, or would impair national defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments.”58 Courts are likely to give considerable deference to such assertions. If and when the agency finally produces the documents, many will have entire areas omitted and numerous documents will probably be withheld. The agency will claim a variety of privileges. The next phase of the litigation will involve trying to force the agency to reveal what it wants to keep secret. Although it is difficult and painfully slow litigation, victories can be achieved. The government rarely can protect all of its documents, and the court has a 53

See supra note 51. See also Linder v. Department of Defense, 133 F.3d 17 (D.C. Cir. 1998) (reversing district court’s decision about the burden of the plaintiff’s subpoena on the FBI and CIA but upholding the CIA’s claim of privilege); Linder v. National Sec. Agency, 94 F.3d 693 (D.C. Cir. 1996) (affirming that plaintiff’s subpoenas were burdensome and implicated the state secrets privilege). 54 United States v. Reynolds, 345 U.S. 1, 7-11 (1953). 55 Id. 56 Westinghouse Elec. Corp. v. City of Burlington, Vt., 351 F.2d 762, 767 (D.C. Cir. 1965) (government interest in assuring justice requires great efforts to produce documents). 57 See Linder v. National Sec. Agency, 94 F.3d 693 (D.C. Cir. 1996); El-Masri v. United States, Civ. No. 06-1667, 2007 WL 625130 (4th Cir. Mar. 2, 2007). See also Chapter 11, Section F. 58 Tenebaum v. Siminoni, 372 F.3d 776, 777 (6th Cir. 2004) (citations omitted).

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number of tools at its disposal for determining the validity of government privileges.59 F. FOREIGN DISCOVERY AND OBTAINING EVIDENCE FROM ABROAD Obtaining evidence from abroad can be a complex and time-consuming process, one that may result in clashes between U.S. and foreign authorities.60 U.S. civil procedure allows for far broader discovery than other nations.61 Foreign jurisdictions, therefore, often view U.S. discovery orders with hostility and attempt to block U.S. efforts to examine evidence and witnesses located on their soil. Many foreign jurisdictions reject the U.S. notion that the parties themselves conduct discovery; they see the collection of evidence, even in civil litigation, as something to be accomplished by state officials alone. Finally, U.S. courts are among the few in the world willing to issue orders to any party over whom they have jurisdiction, even if those orders relate to evidence found on other nations’ territory. Foreign jurisdictions may resist what many view as unwarranted extraterritorial application of U.S. law and civil procedure. Foreign discovery can be broken down into two basic categories. First, where the U.S. court has personal jurisdiction over the target of discovery, the court may order the production of evidence as envisioned in the federal rules, even if the evidence is overseas and even if production of such evidence violates foreign law. Second, if the U.S. court decides not to order discovery under the federal rules, or if no basis for U.S. jurisdiction can be found, a U.S. court must either: (1) request voluntary cooperation from foreign authorities, through letters rogatory, (2) use the procedures allowed under the Hague Evidence Conven59 For example, the Supreme Court has set out a standard for determining if documents over which the government has claimed a privilege should be reviewed by the court in camera. United Staes v. Zollin, 491 U.S. 554, 571-75 (1989). 60 Several excellent sources on the topic exist. See, e.g., BRUNO A. RISTAU, INTERNATIONAL JUDICIAL ASSISTANCE (Rev. ed. 2000); GARY B. BORN & PETER B. RUTLEDGE, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 907-1007 (4th ed. 2007); U.S. State Department, Taking Evidence Abroad, available at http://travel.state.gov/law/info/judicial/judicial 2514.html. 8 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE CIVIL 2D §§ 2005.1, 2083 (2007), can answer most questions regarding the Federal Rules of Civil Procedure. 61 Federal Rule of Civil Procedure 26(b)(1) allows discovery of “any matter, not privileged, that is relevant to the claim or defense of any party” including information that is not admissible at trial if the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.”

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tion,62 or (3) proceed under methods established in a bilateral treaty, if any, with the state in which the evidence is located. From the plaintiff’s perspective, it is always better to convince a court that it has jurisdiction over the target of discovery and that such jurisdiction should be exercised to force compliance with the federal rules. Application of the federal rules is far more convenient and enforceable than resort to the Hague Convention, bilateral treaties, or voluntary international judicial assistance. 1.

Obtaining Evidence from Parties over Whom U.S. Courts Have Jurisdiction

When a U.S. court has jurisdiction, it must decide whether or not to use the power it has to order unilateral compliance with U.S. discovery and evidentiary rules. a.

Document Production

Many cases have established that U.S. courts may use Rule 34 of the Federal Rules of Civil Procedure to order parties (over whom they necessarily have jurisdiction) to produce documents located overseas.63 Documents and witnesses within the control of the defendants’ subsidiaries are generally considered to be within the defendants’ control for purposes of discovery.64 Federal Rule of Civil Procedure 45 allows a court to order non-parties overseas to produce documents if they are subject to U.S. jurisdiction and can be served with subpoenas. However, Rule 45 limits service to a district court’s territorial jurisdiction, so it is almost impossible to serve witnesses who are overseas, unless they are U.S. citizens or resident aliens.65 Moreover, courts 62 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention), incorporated into U.S. law at 28 U.S.C. § 1781. 63 See, e.g., Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958); In re Marc Rich & Co., 707 F.2d 663, 666-67 (2d Cir.), cert. denied, 463 U.S. 1215 (1983); Laker Airways, Ltd. v. Pan Am. World Airways, 103 F.R.D. 42 (D.D.C. 1984); Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918 (S.D.N.Y. 1984). See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 442(1)(a) (1987). 64 Lineen v. Metcalf & Eddy, Inc., Civ. No. 97-2718, 1997 WL 73763 (S.D.N.Y. 1997); Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 99 F.R.D. 309, 313 (N.D. Ga. 1983) (citing Hubbard v. Rubbermaid, Inc., 78 F.R.D. 631 (D. Md. 1978)). 65 See BORN & RUTLEDGE, supra note 60, at 934, 937.

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show a greater reluctance to command compliance by non-parties as opposed to parties.66 A party’s failure to comply with a discovery order subjects it to sanctions under Federal Rule of Civil Procedure 37. A non-party’s failure to comply with a 45 subpoena may subject it to contempt.67 b.

Oral Examination of Witnesses

Witnesses over whom a U.S. court has jurisdiction, but who are overseas, may either be ordered to return to the United States to attend a deposition or be deposed abroad. Parties to an action may always be ordered to attend a deposition upon oral examination under Federal Rule of Civil Procedure 26(a). Non-parties must be subpoenaed under Federal Rule of Civil Procedure Rule 45. Overseas deponents may argue that travel to the United States is too burdensome; courts differ as to how to respond.68 The court will generally make a fact-specific evaluation before deciding whether to order travel to the United States. Most foreign countries do not allow involuntary depositions on their soil—meaning a U.S. court can almost never force compliance by the individual to be deposed. Many foreign states ban depositions for U.S. courts altogether.69 66

See, e.g., Laker Airways, Ltd. v. Pan Am. World Airways, 607 F. Supp. 324 (S.D.N.Y. 1985) (refusing to require that a British bank produce documents located in Great Britain, even though the non-party bank had a branch in New York); United States v. First Nat’l Bank of Chicago, 699 F.2d 341 (7th Cir. 1983). 67

FED. R. CIV. P. 45(e).

68

See discussion of deposition location in the Avril case in Section C. Compare In re Vitamin Antitrust Litig., 2001 U.S. Dist. LEXIS 25070 (D.D.C. Sept. 10, 2001) and Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1365-66 (7th Cir. 1985) with Work v. Bier, 107 F.R.D. 789 (D.D.C. 1985). Courts may also choose a place for a deposition overseas when parties cannot agree on a location. See, e.g., Republic of the Philippines v. Marcos, 888 F.2d 954 (2d Cir. 1989). In Bowoto, in response to the defendants’ expressed concerns for security, the court directed that all depositions be taken in the defendants’ compound. Bowoto v. Chevron Corp., Civ. No. 99-2506 (C.D. Cal. Jan. 5, 2005) (minute order). In Unocal, an elaborate plan was devised for locating the depositions to minimize the possibility that the plaintiffs’ identities might become known to Thai or Burmese authorities. See Chapter 9. 69

RISTAU, supra note 60, at § 3-2-3. The Office of Policy Review and Interagency Liaison of the Consular Affairs Overseas Citizens Services at the Department of State maintains lists of particular countries’ rules regarding depositions on their soil, available at http://travel.state.gov/law/info/judicial/judicial 702.html. That office, as well as local counsel, should be consulted before any deposition is taken.

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If counsel anticipates this problem, they should present the issue to the court in support of an argument that the depositions should be held in the United States. If a court refuses to order the intended deponent to come to the United States, there are three ways to take the deposition abroad.70 One way is by “stipulation,” meaning by any method agreed to by the parties.71 A deposition may also be taken following “notice” (to the opposing party)72 “before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States.”73 Third, depositions abroad may be taken before someone commissioned by the U.S. district court, under Federal Rule of Civil Procedure 28(b).74 If the deposition is taken abroad, it is necessary to have the deposition transcribed by a reporter certified to take a federal court deposition. This may require a reporter from the United States, although it may be possible to use a foreign-based reporter certified under the federal rules. c.

Specific Hurdles to Discovery Abroad

Discovery abroad has proceeded in human rights cases even when the government of the country where the abuse took place is hostile to the litigation. In Unocal, depositions were conducted in Thailand, although the events at issue occurred in Burma.75 In Wiwa, depositions were taken in Nigeria, despite statements from the attorney general of Nigeria opposing the litigation.76 In Kiobel v. Royal Dutch Petroleum Co., a companion case to Wiwa, depositions of Nigerian witnesses who had taken refuge in the Benin Republic were taken in their place of refuge.77 In Wiwa, the defendants argued that local law precluded 70

See FED. R. CIV. P. 28(b), 29. FED. R. CIV. P. 29. See also 4 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶¶ 28.03, 28.07, 28.11 (2d ed. 1994); id. at ¶ 29. 72 Federal Rule of Civil Procedure 30 governs the notice and procedural requirements for oral depositions; Federal Rule of Civil Procedure 31 controls written interrogatories. 73 FED. R. CIV. P. 28(b)(3). Since foreign law must be complied with, parties must investigate the foreign country’s regime to find out who the foreign nation allows to take depositions on its soil. Once again, almost all foreign states ban compulsory depositions on their territory. 74 Again, participants must comply with all foreign laws or risk criminal penalties and other sanctions. 75 Doe v. Unocal Corp., Civ. No. 96-6959 (C.D. Cal. 1996). 76 Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386 (S.D.N.Y. 1996). 77 Civ. No. 02-7618 (S.D.N.Y. 2002). 71

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the production in the United States of documents located in Nigeria. When their assertion was challenged in court, the defendants produced the documents.78 In Coca-Cola Foods v. Empressa Comercial Internacional de Frutas S.A., the defendant argued that Swiss penal law prohibited acts relating to the taking of evidence in a foreign territory.79 The court awarded sanctions against the defendants for non-compliance with the plaintiff’s jurisdictional discovery request. In Bowoto v. Chevron, the defendants produced over 100,000 pages of documents. For most of the period of merits discovery, Chevron produced the documents in the United States.80 However, during expert discovery, Chevron refused to produce them outside Nigeria, where plaintiffs’ counsel had difficulty arranging for copying. Counsel should be prepared to go to court when the defendants create conditions that severely impede the discovery process. If a party or non-party is expected to claim that a foreign state will not let it comply with any U.S. discovery orders, it is best to approach the problem in two steps. First, the plaintiff should attempt to convince the U.S. court to order the party or non-party over whom it has jurisdiction to comply with discovery, as allowed under the Federal Rules of Civil Procedure, even if that party risks angering the foreign government or violating foreign laws and regulations. Societe Internationale firmly established that a U.S. court has the ability to order such discovery even if it puts the target at risk of breaching foreign laws.81 The Court laid out three factors it considered in upholding the discovery order: U.S. policy interests in the underlying litigation; the importance of the evidence desired; and the nationality of the party from whom discovery was requested.82 Other courts have adopted a variety of approaches.83 It is also significant that the existence of the Hague Evidence Convention, or even a bilateral treaty with the foreign state in question, does not preclude court-ordered discovery under the 78

Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386 (S.D.N.Y. 1996). Civ. No. 96-358, 1997 WL 370121, at *9-10 (M.D. Fla. 1997). 80 Civ. No. 99-02506, 2006 WL 2455752 (N.D. Cal. Aug 22, 2006). 81 Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958). 82 Id. at 204-07. See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 442(1)(c) (1987) (listing five factors a court should consider in deciding whether to order production of documents located overseas). 83 See generally Lenore B. Browne, Note, Extraterritorial Discovery: An Analysis Based on Good Faith, 83 COLUM. L. REV. 1320 (1983); BORN & RUTLEDGE, supra note 60, at 941-62. 79

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federal rules.84 Since Societe Internationale, lower courts have generally favored discovery through the federal rules, rather than through the use of the Convention’s procedures.85 Second, if the U.S. court does issue the order and the target claims that it cannot comply, the plaintiff should convince the court to threaten to impose sanctions, or actually impose them, for the non-compliance. However, if the target of the order maintains that compliance is not possible, the court will not necessarily impose sanctions: courts may accept “foreign illegality” as an excuse for non-compliance. In Societe Internationale, the Court held that Federal Rule of Civil Procedure 37(b) should not be construed as authorizing a court to impose sanctions where the party was unable to comply with a discovery order.86 The Court asserted that sanctions or dismissal should result only if non-compliance is due to “willfulness, bad faith, or any fault of petitioner.”87 However, counsel should notify the court if the uncooperative party deliberately 84

Societe Nationale Industrielle Aerospatiale v. U. S. District Court, 482 U.S. 522 (1987). The Court ruled unanimously that the Hague Evidence Convention does not preclude application by U.S. courts of the Federal Rules of Civil Procedure. A five-justice majority held that, in choosing between applying the Convention or ordering discovery under the federal rules, courts should weigh the “particular facts, sovereign interests, and likelihood that resort to . . . [the Convention] procedures will prove effective.” Id. at 544. However, a four-justice minority wrote that the Convention should generally be the method of first resort. The RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES Section 442(1)(c) lists “the availability of alternative means of securing the information” as one of the factors to be considered before a U.S. court orders discovery. 85 See generally James Chalmers, The Hague Evidence Convention and Discovery Inter Partes: Trial Court Decisions Post-Aerospatiale, 8 TUL. J. INT’L & COMP. L. 189 (2000); Daniela Levarda, Note: A Comparative Study of U.S. and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery, 18 FORDHAM INT’L L.J. 1340, 1372-75 (1995); Joseph P. Griffin & Mark N. Bravin, Beyond Aerospatiale: A Commentary on Foreign Discovery Provisions of the Restatement (Third) and the Proposed Amendments to the Federal Rules of Civil Procedure, 25 INT’L LAW. 331, 336-40 (1991). 86 Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958). 87 Id. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES Section 442(1)(a) lays out a similar test, recommending that the court or agency not impose sanctions of “contempt, dismissal, or default” on a target that cannot comply, “except in cases of deliberate concealment or removal of information or of failure to make a good faith effort” to comply.

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sought the foreign governmental action that precluded compliance. In that circumstance, the court may impose sanctions.88 2.

Obtaining Evidence from Targets over Whom the U.S. Court Has No Jurisdiction or Will Not Exercise Jurisdiction

If all else fails, the plaintiff will have to proceed with one of the second-best methods of discovery: the procedures laid out under the Hague Convention; a non-binding request for assistance from the foreign country through a letter rogatory; or the methods specified in a bilateral treaty between the United States and the foreign country involved, if any. All of these methods are far less advantageous for a plaintiff than proceeding under the Federal Rules of Civil Procedure. a.

Hague Evidence Convention

The Hague Evidence Convention89 sets up a procedure through which a court in one country that is party to the Convention may send a “letter of request” to an office named as the “Central Authority” in the country that has jurisdiction over the individuals from whom evidence is sought, or in whose territory the evidence is located. The foreign Central Authority then ensures execution of the request on its soil. Use of the Convention is better than a letter rogatory, because parties to the Convention are obligated to execute letters of request and must even apply “appropriate measures of compulsion” available under local law to force the targets of discovery to comply. However, the foreign country involved must also be a party to the Convention. b.

Letters Rogatory

Letters rogatory are the traditional method for seeking evidence in a foreign country. The letter amounts to an official request from a U.S. tribunal to a foreign nation’s authorities, asking for aid in carrying out U.S. judicial functions. Usually the letter travels from a U.S. court to the State Department, on to the receiving nation’s foreign ministry, and finally to the foreign tribunal. The letter may ask a foreign court to compel someone within its jurisdiction to permit discovery, or force that person to testify or make documents available to the foreign tribunal for transmission to the U.S. requesting court. 88 89

See Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2d Cir. 2004). Hague Convention, supra note 62.

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Letters rogatory are an extremely unreliable method for obtaining evidence; they should be used only as a last resort. The process is slow and relies entirely on the discretion of the foreign authorities involved, who are under no obligation to grant the request. Clearly, requests in human rights cases risk outright rejection by the foreign tribunal or delay and obfuscation by recipient foreign ministries. For example, there was not even a response to letters rogatory sent in the Avril90 or Unocal91 cases. Discovery, if granted at all, will be under the foreign country’s methods and rules. These will usually allow much narrower discovery than would be available under the federal rules. The use of foreign methods may lead to further difficulties if, once discovery is completed, the defendant challenges the admissibility of the discovered evidence in the United States, claiming that the foreign procedures utilized failed to comply with U.S. evidentiary rules.92 The letter rogatory and request contained in it must comply with the foreign country’s required forms. Assistance from the State Department’s Office of American Citizens Services, as well as from foreign counsel, should be sought.93 Finally, it is important to frame the discovery request in such a way as to make it acceptable to the foreign legal culture. Since most nations, unlike the United States, do not allow discovery of evidence that may not be admissible in court, it is important to assert in the letter rogatory that all information requested will be used as evidence at trial. 90 In Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994), the district court issued letters rogatory at the plaintiffs’ request, but it proved impossible to obtain documents during the 1991-1994 military dictatorship in Haiti: the plaintiffs’ local lawyer was murdered, and no court in Haiti would honor the U.S. judicial request. For copies of the Avril letters rogatory, see www.ccr-ny.org/humanrightsbook. 91 In the state court proceedings in the Unocal cases, the court issued letters rogatory for documents in France. Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000); Roe v. Unocal, BC 237679 (Cal. Super. Ct. filed Oct. 4, 2000). However, these documents were not received in time for their use in the summary judgment proceedings or by the time the case was finally settled. 92 Federal Rule of Civil Procedure 28(b) tries to forestall some admissibility problems. It states that “[e]vidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States under these rules.” 93 See RISTAU, supra note 60. Ristau also provides information on various national practices.

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c.

Bilateral Treaties

Finally, the plaintiff should, of course, check whether the United States has any bilateral treaties on obtaining evidence with the nation in which foreign evidence is located. G. EXPERT DISCOVERY UNDER THE FEDERAL RULES As noted in Chapter 17, the testimony of experts is often key to the successful litigation of human rights cases. Expert testimony often goes beyond the more typical tort topics such as lost wages and physical and mental condition. Under Rule 41 of the Federal Rules of Civil Procedure, an expert can testify about the content of international law. Experts can also set the human rights context in which the abuses occurred and explain those aspects of the plaintiff’s situation that are foreign to both judge and jury. Discovery from experts may be obtained pursuant to Rule 26(b)(4).94 Commonly, the parties or the court will set a period for expert discovery to commence after the close of fact discovery. Most jurisdictions also require that the expert submit a report that reveals the information upon which the expert will rely and the opinion to be given. In the likely circumstances that the plaintiffs will rely on expert testimony, it is important to provide the expert with the information necessary for the expert report well in advance of the due date. However, counsel should remember that communications with experts are not protected from discovery. Subpoenas duces tecum directed to the designated expert should be served with the notice of deposition for the expert. H. RESPONDING TO DEFENDANTS’ DISCOVERY The issues arising out of discovery propounded by defendants in human rights cases are often similar to those that concern plaintiff’s counsel in other tort litigation. Nevertheless, this is an area of discovery where the special circumstances of human rights cases intensify the burden on the plaintiffs. This section and Section I address particularly complex issues in the context of human rights claims. These include: communication with the plaintiffs; the protection of the plaintiffs and witnesses and fears of reprisals; discovery from third parties, including human rights organizations and the plaintiffs’ counsel; and allegations of misconduct. 94

FED. R. CIV. P. 26(b)(4).

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Communication with the Plaintiffs95

1.

Success in responding to discovery directed to the plaintiffs requires a consistent and reliable means of communicating with the plaintiffs. Especially if the plaintiffs are located outside of the United States, the process may be time consuming and expensive. It is desirable that counsel be present when the initial information is obtained from the plaintiffs. The responses should be written down and translated and read back to the plaintiffs before they are verified. Foreign lawyers may not understand the exacting rules governing U.S. legal proceedings; U.S. lawyers should not assume a common understanding of the requirements, even if a foreign legal system seems the same as that of the United States. Different understandings of how precise the information and the procedures must be are fraught with possibilities for a misstep. For that reason, it is highly desirable that U.S. counsel, along with reliable translators, be present throughout the process of preparing interrogatory responses. Because it may be impossible or difficult to have the plaintiffs review all of the information contained in the responses gathered by the legal team, it is important to be clear in the interrogatory responses about which information is based on personal knowledge of the plaintiff and which was obtained from other sources. No matter how thoroughly a defendant’s interrogatories have been answered, the defendant is likely to demand additional information. Defendants’ counsel are well aware of the expense in time and money involved in forcing plaintiffs’ counsel to go abroad. Courts have recognized that depositions may be less expensive and less burdensome than interrogatories and that they provide a superior means by which to obtain reliable information. Plaintiffs’ counsel may seek protective orders against unduly burdensome interrogatories where deposition discovery is available.96 In terms of gathering documents in response to requests, plaintiffs should be given precise instruction about various places that must be searched. A plaintiff may reside in one home and retain ties to a home with extended family where important documents are kept. If the plaintiff cannot read the documents, it is best to obtain everything available and have a member of the legal team and a translator available to review them. There may not be a copier anywhere in the area; counsel should consider the problem before going into the field. 95

The issue of providing protection to plaintiffs and witnesses is also discussed in Chapter 9, Section D. 96 See, e.g., Fishman v. A.H. Riise Gift Shop, Inc., 68 F.R.D. 704, 705 (D.V.I. 1975); Boyden v. Troken, 60 F.R.D. 625, 626 (N.D. Ill. 1973); Vakharia v. Swedish Covenant Hosp., Civ. No. 90-6548, 1994 WL 75055 (N.D. Ill. Mar. 9, 1994).

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While depositions are trying for everyone, for clients who are completely unfamiliar with U.S. court procedures, and perhaps have never been to a large city (where the deposition is likely to be conducted), the process may be especially confusing and intimidating. It is helpful to consider what steps can be taken to make the plaintiff or other witness more comfortable. Preparing the plaintiff/witness for the strange environment may make the ordeal somewhat less threatening. Explaining some of the constraints under which lawyers operate to plaintiffs and witnesses early in the process may help. However, cultural attitudes may be so different that explanation may be difficult and have limited value in bridging the gap. For example, a plaintiff may not be comfortable in discussing the concept of money damages for the death of a family member. Experts can provide direction for counsel, and team members familiar with the plaintiffs’ culture can help to bridge the gap. Preparing the plaintiff for the deposition is more complicated when speaking through an interpreter. The quality of the interpreter and the interpreter’s understanding of the case can be critical. For example, in the case against Unocal, one plaintiff had consistently stated that the corporation building the pipeline had provided rice to the military. During his deposition, however, he testified that he had not seen the military receive rice from the company. Fortunately, plaintiffs’ counsel had their own interpreter present, who explained that the official translator had used a different word for “rice”; the apparently inconsistent testimony was caused by this discrepancy. 2.

Discovery from Plaintiffs’ Counsel and Their Agents

Human rights litigation in the United States is often based on the work of organizations dedicated to gathering information about abuses in communities abroad or among refugee communities in the United States. Some of these organization have counsel themselves. The relationship between these community organizations and the litigation team may raise complicated discovery questions. Defendants may seek to discover the content of communications between the human rights workers and the plaintiffs and third-party witnesses. The possibility that the human rights organization is entitled to a privilege in its own right is discussed below. However, the same organization that documents and reports on human rights abuses may be part of the litigation team as an organization or though its employees. The organization may provide attorneys, serve as a liaison between the U.S.-based litigation team and the plaintiffs, provide translators, and conduct investigations. As a result, the defendants’

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discovery may implicate questions of traditional attorney/client privilege and work product doctrine.97 In Unocal,98 for example, the court granted discovery of the papers belonging to the head of a human rights organization that functioned both as part of a legal team and as a reporter of human rights abuses. However, the court greatly restricted the defendants’ access to and use of the documents and information obtained from them. The magistrate judge struck a balance between the philosophy of liberal discovery under the federal rules and issues of security for the Burmese interviewees, who could have been harmed by the disclosure of the information. Only the defendants’ lawyers, excluding even secretaries, were to receive copies of documents from which all names of persons and villages were redacted. Despite the restriction eventually imposed in Unocal, the best way to ensure that communications are privileged or confidential is to separate litigation-related activities from the other work of the human rights group. 3.

Statements to the Media

Often a human rights case arises in the context of a broader campaign to educate the general public about the situation that gave rise to the legal claims. Members of the legal team may be associated with organizations whose missions include public education. In addition, there is often media interest in human rights cases that would not arise out of general tort litigation. Communications between members of the legal team and/or the plaintiffs and the media involve a number of considerations. First, the legal team should be cognizant of a judge’s attitude to press coverage of cases in litigation. Counsel must be careful not to violate any court order concerning such communications. Second, it is likely that there will be a protective order, negotiated by the parties, 97

The court may apply a variety of tests to determine when a “dual purpose” document will be considered confidential or privileged. See, e.g., Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983) (applying motivating purpose test); Maine v. U.S. Dept. of Interior, 298 F.3d 60, 70 (1st Cir. 2002) (holding that documents that would have been created in essentially similar form irrespective of the litigation are not protected even if such documents aid in the preparation of litigation); Visa U.S.A., Inc. v. First Data Corp., Civ. No. 02-1786, 2004 WL 1878209, at *4 (N.D. Cal. Aug. 23, 2004) (suggesting that the primary purpose test may have been replaced or refined by the “because of” standard); In re OM Group Sec. Litig., 226 F.R.D. 579, 587 (N.D. Ohio 2005) (different tests applied to attorney-client privilege and work product doctrine). 98 Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) (denying motion to dismiss). For the full procedural history of the Unocal litigation, see Chapter 1, note 66.

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which restricts counsel’s ability to reveal certain information obtained in discovery and may restrict the discovery of certain information.99 In the Unocal case, there was significant litigation over what had been revealed to the media. The defendants argued that, because information concerning the identity of certain plaintiffs had been revealed to the media, it was no longer within the confidentiality provisions of the protective order. Although defendants were unsuccessful, litigation over these issues put an additional strain on the plaintiffs’ resources. The Unocal defendants also engaged in an unsuccessful attempt to have counsel for the plaintiffs sanctioned for revealing to the media information obtained in discovery and subject to protective orders. Unocal was unsuccessful because references to the same documents had been made public in decisions by the court and in public oral arguments in court. 4.

Allegations of Misconduct

For many defendants, the most serious potential consequence of being charged with human rights violations is the attendant bad publicity. This is particularly true of corporate defendants and officials with political aspirations. For that reason, several defendants in past and ongoing human rights cases have expended considerable efforts to paint the plaintiffs (and their counsel) as liars, cheats, and evil-doers. In one instance, the defendant asserted that a statement by a tribal king to the community in support of the case was an attempt to intimidate witnesses and was attributable to the plaintiffs.100 In others, the defendants have charged the counsel for plaintiffs with suborning perjury. The courts view such accusations seriously.101 99

For example, a court might restrict the defendants’ ability to learn a plaintiff’s current location. For a copy of the protective order in Doe v. Unocal, see www.ccrny.org/humanrightsbook. 100 The court required the plaintiffs to conduct an investigation and submit a report. On the basis of the report, which included declarations of witnesses to the event in question, the court rejected the defendants’ request that the plaintiffs produce the tribal king for deposition. Bowoto v. Chevron Corp., Civ. No. 99-02506, 2006 WL 2455752 (N.D. Cal. Aug 22, 2006). 101

In Kiobel v. Royal Dutch Petroleum Co., Civ. No. 02-7618, 2006 WL 2850252 (S.D.N.Y. Sept. 29, 2006), in numerous pleadings, the defendants accused the plaintiffs’ lawyers of paying witnesses for their testimony and submitting testimony they knew to be false. Plaintiffs’ counsel acknowledged making payments to relocate and house the witnesses in connection with their depositions. The court concluded there was no evidence to support the accusation that the witnesses were being paid for their testimony.

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In many communities in which the plaintiffs live, there is an assumption that money received by one member will be shared with the community and an extended family. Often this is the same pool from which eyewitnesses will come. The defendants may use these traditions as a basis for claiming that witnesses are being bribed to give false testimony with promises of future payments. Similarly, accusations of wrongdoing may arise from expense payments to provide transportation, food, and accommodation. Because depositions must be taken where there are adequate facilities, including a dependable source of electricity, the plaintiffs and witnesses are frequently brought to locations that are both unfamiliar and beyond their fiscal means. It is not unethical to provide deponents with expenses for travel, food, and accommodation. Thinking through the issues that may arise and planning accordingly is the best but not a certain way to avoid such problems. Careful accounting is important in defending against such accusations. Keeping logs showing who was contacted and when may be helpful. Instructions to co-counsel and investigators abroad should be detailed and explicit. Counsel may also seek advice from a legal ethics specialist to have a clear and specific view of what is permissible under the canons of ethics. I.

DISCOVERY FROM THIRD PARTIES, INCLUDING HUMAN RIGHTS ORGANIZATIONS

Human rights cases traditionally rely on published human rights reports and the testimony of experts on human rights abuses in the areas where the cause of action arose. The research and preparation of such reports are based on an expectation that the identity of the informant will be kept confidential. Discovery propounded by the defendants may intrude into areas in which human rights investigators and their interviewees have an expectation of confidentiality. In the Talisman case,102 for example, disputes arose over whether defendants or plaintiffs could subpoena the records of human rights organizations that had reported on human rights violations in the Southern Sudan. Plaintiffs hoped to use the reports issued by these organizations to bolster their claims of corporate The court then found that the accusations violated Rule 11, and imposed sanctions on the defendants’ counsel. 102 There are numerous reported decisions in the case, including, most recently, Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (granting defendant’s motion for summary judgment) (appeal pending). None discuss this dispute.

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complicity in genocide, crimes against humanity, and war crimes. The human rights organizations involved, including Human Rights Watch and Amnesty International, resisted the subpoenas on the grounds that they had provided assurances of confidentiality to their sources, many of whom lived in dangerous situations. They also claimed a privilege akin to a journalist’s shield law privilege. Most of the materials sought in Talisman were not ultimately produced, but there was no definitive or published decision on the issues at stake. In Unocal, the defendants sought production of the notes taken by a human rights investigator in the field on the Burma/Thai boarder. The plaintiffs asserted several privileges to protect the notes.103 Because the notes were taken in preparation for the publication of a human rights report, the plaintiffs argued that the notes contained confidential identifying information that was protected from discovery, either by a general protection for confidential research or by a qualified journalist’s privilege. The plaintiffs also argued that acceding to such discovery requests would chill human rights work, because informants could not speak without confidentiality. The court ordered that the notes be produced, but permitted them to be redacted to exclude the names and locations of the interviewees. The court also allowed the plaintiffs to seek additional redaction to protect the same information.104 The court found that the notes were discoverable because the expert had reviewed them before the deposition to ascertain whether any of the informants were plaintiffs in the case. If the expert had not done so, it is less likely that the court would have required their production. There is little guidance about how courts should handle such disputes. At some point, the courts may be called upon to resolve the issue of whether human rights organizations possess any special protection for their sources or confidential files in order to facilitate the important work they do. It seems likely that some kind of balancing of interests will be applied by the courts in the meantime, under traditional discovery rules. Because issues concerning confi103

Because the issue arose while the case was being litigated in state court, the privileges asserted were those available under California law. 104 Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000); Roe v. Unocal, BC 237679 (Cal. Super. Ct. filed Oct. 4, 2000), Revised Notice of Rulings, ¶ 3 (Oct. 1, 2003). Because the human rights reporter objected to producing her notes, she asked to be removed from the list of experts. Following California law concerning the withdrawal of experts, the court ordered that she produce the notes and appear for continued deposition. The court issued a request for enforcement by a British court, where she was located, but the defendants failed to pursue the issue.

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dential documents and methodology might arise out of the use of a human rights expert, the matters should be considered and discussed by the plaintiffs’ counsel and any potential witness. J. PROTECTIVE ORDERS To prevent publication of information produced in discovery, both parties may have reason to stipulate to a protective order.105 Plaintiffs may be concerned with protecting their identities and those of the witnesses.106 On occasion, a plaintiff may seek a protective order to prevent the defendant from inquiring into information that is irrelevant to the issues in the case and potentially dangerous for the plaintiff, such as the plaintiff’s immigration status.107 A protective order will also be necessary if the plaintiffs continue to live under a repressive regime or are refugees in a third country. The scope of the protection sought may vary depending on the plaintiffs’ situation. In Unocal, plaintiffs lived in precarious conditions in Burma or as undocumented refugees outside Burma. A protective order was put in place that restricted certain information to the eyes of opposing counsel only.108 The defendants may be concerned about the publication of information that reveals embarrassing connections with repressive regimes or knowledge of the human rights abuses alleged. However, embarrassment is not a valid basis for a protective order. The protective order should include language that allows parties to challenge its use. In past cases, defendants have overused the confidentiality designation, expanding it beyond that contemplated by the federal rules. To avoid delay, it is useful to provide a draft stipulation and protective order at the outset of discovery. Even if the parties cannot come to a complete agreement on the terms, counsel should resolve as much as possible before putting the matter before the court. Even if the matter is resolved by stipulation, the court will need to approve the protective order. 105

FED. R. CIV. P. 26(c). See Chapter 9, Section D. See also Jed Greer, Comment, Plaintiff Pseudonymity and the Alien Tort Claims Act: Questions and Challenges, 32 COLUM. HUM. RTS. L. REV. 517 (2001). 107 See, e.g., Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y. 2002) (raising claims of trafficking and involuntary servitude and granting plaintiff’s motion for an order preventing her employers from inquiring into her immigration status). 108 For a copy of the protective order in Doe v. Unocal, see www.ccr-ny.org/ humanrightsbook. 106

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Typically, the defendants will designate as confidential most of the documents produced, as well as significant parts of deposition transcripts. In Doe v. Unocal, the parties entered into a stipulation for a protective order, pursuant to which Unocal designated much of the discovered material as confidential. The contents of many documents were made public, however, through both court references and successful motions by journalists. Handling materials subject to a protective order may be cumbersome, requiring that briefs and appendices be filed under seal. Where resources are available, it is useful to challenge the “confidential” designation when the documents are reviewed. A motion for a protective order may also be an appropriate response to a defendant’s abuse of discovery.109 109

See Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386, 2006 WL 2724024 (Sept. 22, 2006).

CHAPTER 20 PROVING A CASE

Preparing to prove a human rights case raises the same issues as any case—any case, that is, where the events took place in a foreign country; the plaintiff was the victim of traumatic human rights abuses and often is a refugee, far from home, who may not speak English; witnesses have scattered and may be afraid to testify; documentary evidence may be scarce; and the defendant is a powerful official or corporation, with the ability to commit such human rights abuses with impunity, or acted in concert with powerful government officials who may continue to pose a threat to the plaintiffs.1 In addition, the trier of fact sitting in the United States may find it difficult to believe that such atrocious events really took place. Indeed, one key part of the plaintiff’s task is to educate the judge or jury about the reality of human rights abuses so that the inherently incredible facts of the specific case are credible to someone who has never experienced such evil. Despite these problems, many cases have resulted in victories for the plaintiffs, including jury verdicts in favor of plaintiffs and settlements.2 In other cases, after defendants defaulted, plaintiffs proved damages by affidavit or at a non-adversarial hearing. The strength of the plaintiffs’ cases presumably has been a factor in most of the defaults.3 Plaintiffs have lost only one case for 1

See Chapter 11 for a discussion of the special issues raised by cases filed against U.S. government officials, as well as a mention of alternative means for litigating claims arising within the United States. 2 See, e.g., Abebe-Jira v. Negewo, Civ. No. 1:90-2010 (N.D. Ga. Aug. 20, 1993), aff’d, 72 F.3d 844 (11th Cir. 1996); In re Estate of Marcos Litigation, Civ. No. MDL 840 (D. Haw. Jan. 3, 1995), aff’d, Hilao v. Estate of Marcos, 103 F.3d 767, 776 (9th Cir. 1996); Arce v. Garcia, Civ. No. 99-8364 (S.D. Fla.), aff’d, 434 F.3d 1254 (11th Cir. 2006); Cabello v. Ferna´ndez-Larios, Civ. No. 99-528 (S.D. Fla.), aff’d, 402 F.3d 1148 (11th Cir. 2005); Chavez v. Carranza, Civ. No. 03-2932 (W.D. Tenn. Jan. 18, 2006) (final judgment) (appeal pending). For a complete procedural history of Doe v. Unocal, which ended in settlement, see Chapter 1, note 66. 3 Of course defendants may have many reasons for choosing to default. Most, however, might well have chosen to defend the lawsuit had they thought plaintiffs would be unable to prove the facts underlying the complaint. 503

504 International Human Rights Litigation in U.S. Courts

failure to prove that defendants were legally responsible for the human rights violations.4 Whether a human rights case is decided at trial, on summary judgment, or in a default, plaintiffs must be prepared to prove their case.5 Many cases begin with human rights reports or widely reported accusations of egregious abuses. Counsel must avoid the assumption that events that are well-known and well-documented in the press or the human rights literature will therefore be easy to prove in court. The Federal Rules of Evidence apply to all cases litigated in federal court and set rules that can be both highly technical and burdensome, particularly when applied to evidence about traumatic events, collected in a foreign country. By thinking from the very start of the case about issues of proof and the admissibility of evidence, counsel may be able to anticipate and avoid problems. Careful preparation will not eliminate the serious difficulties involved in litigating an international human rights case but can make it possible to litigate successfully. This chapter will first focus on issues of proof common to all cases, whether or not they go to trial. These include: the basic facts dealing with who did what to whom, and when and where it was done; proof of damages; and the central roles of experts in human rights litigation. Later sections address issues specific to trials, class action suits and appeals. A. FACT ISSUES: WHO DID WHAT TO WHOM, WHEN, AND WHERE Proof of the facts, as in any case, requires linking pieces of a chain together into a coherent whole. Many human rights cases begin with the two opposite ends of the chain: the story of what happened to the plaintiffs, and the defendant’s role in this and other human rights abuses. Which proof issues are most problematic will depend first on the availability of witnesses or other evidence. Just as important will be the defense presented by the defendants: Do 4

Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002). See Chapter 10, Section B.2, discussing command responsibility. See also Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (granting defendant’s motion for summary judgment) (appeal pending). 5 In a default, the burden will be greatly reduced by the presumption that well-pleaded facts in the complaint are true. However, it may still be important to present to the judge proof of the basic facts underlying the case as well as a full rendition of all facts supporting the demand for compensatory and punitive damages. See discussion of default judgments in Chapter 18, Section C.

Proving a Case 505

they deny that the plaintiff was abused or accept that the abuse happened but deny personal responsibility? Do they deny that they played any role in the military or other security structure, or admit their positions but deny that they or others committed abuses? Do the corporate defendants deny that the abuse took place at all or deny that they had a connection to the military or paramilitary forces that committed the abuse? Do corporate parent companies deny that they had knowledge of or control over events in which their overseas subsidiaries were involved? What follows touches only briefly on the key proof issues raised by human rights cases. Obviously, every case will raise its own problems of proof. Where a case is based on the claim that the defendant personally abused the plaintiff or was personally present at the time, proof issues will focus almost exclusively on the facts of the human rights violation. A plaintiff who is a surviving victim of the abuse will generally be the key witness to his or her own ordeal. Most plaintiffs will be powerful witnesses, but they may need extensive preparation to be able to tell their stories clearly and effectively. Some victims are so emotional that they have difficulty reciting the awful facts; others have so repressed their memories and emotions that they appear flat and unpersuasive. Preparing a victim to testify may require peeling back layers of denial and suppressed memories, and working through powerful emotions. Plaintiffs may tell their attorneys details that they had previously not disclosed to anyone. Each time the story is told, new details may surface. This release may be extremely important to the plaintiffs and to the lawsuit, but it is also time consuming and draining. The attorney must allot adequate time and must be prepared to respond to the plaintiff’s emotional needs, perhaps by arranging a referral to a therapist experienced in working with survivors of human rights abuses.6 In preparing a client to testify, a lawyer may need to balance the importance of presenting the full details of the client’s suffering against the danger of retraumatizing the client. There is no easy answer to this dilemma. However, the lawyer must be sensitive to this problem and may find that the assistance of a mental health professional experienced in human rights cases is highly desirable. While there may be no other available witnesses to the plaintiff’s ordeal, corroboration may be provided through circumstantial evidence of the events. If the fact that the plaintiff suffered a human rights abuse is questioned, medical 6

Organizations offering medical, psychological, and other services to torture survivors are listed on the Web sites of Survivors of Torture, International, at http:// www.notorture.org/links.html; Survivors International, at http://www.survivorsoftorture. org/survivors/; and the Center for Victims of Torture, at http://www.cvt.org/main.php.

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and psychological evidence about physical and emotional scars may be helpful. If the defendant denies knowledge of the plaintiff or denies participation in human rights violations, other witnesses may be able to link him to the plaintiff or to other abuses. Where the lawsuit involves a claim for summary execution or disappearance, so that the victim of the abuse is unavailable to testify, proving what happened may be much more difficult. Disappearance, in particular, involves piecing together circumstantial evidence. To prove the international tort, plaintiff must show that the victim was detained by security forces who then refused to disclose any information about the prisoner’s fate.7 Plaintiffs may need to address other plausible explanations for the disappearance, such as a personal problem or a decision to join a clandestine political movement. Background information about both the victim and the human rights situation at the time of the abuse may be essential to show that the victim would not have fled for any other reason, as well as to convince the trier of fact that the security forces did commit such abuses. Family members should testify about their efforts to find the missing person, including any evidence that the security forces had the person in custody or knew of the person’s fate. In summary execution cases, proof must start with the last known information about the victims—when they were last seen and how they fell into the hands of those responsible. If the killers deny responsibility, witnesses to the murder must be presented. If there are no witnesses to the actual killing, it may be necessary to explain how the circumstances of the killing indicate that security forces must have been responsible: for example, the body was left in a spot regularly used by security forces to dump the bodies of victims, or the wounds were characteristic of abuse by security forces. Where a human rights case is based upon command responsibility, the fact that the plaintiff was the victim of a human rights abuse may be uncontested. Proof issues are likely to focus instead on the role of the defendant, who may deny responsibility for the abuse. An effective defense strategy might be to express sympathy for the plight of the plaintiffs but disclaim any involvement. Evidence of the defendant’s role in the organization responsible for the abuse will be necessary to show that such abuses would not have occurred without the defendant’s knowledge and authorization or, at a minimum, that the defendant should have known about the abuses and failed to prevent them or punish the 7

The term “security force” in this section is used in a general sense to include state agents and persons or groups acting with their authorization, support or acquiescence. See discussion of state responsibility for disappearances in Chapter 7, Section E.4.

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perpetrators. Eyewitnesses who can testify about the defendant’s role may not be available; instead, the case may turn on the testimony of experts who are familiar with the security forces and the defendant’s role within their structure.8 Claims based on the widespread or systematic nature of the human rights abuse, such as crimes against humanity, genocide, or war crimes, provide special problems of proof. For example, to prove crimes against humanity, the plaintiffs must show that the acts that caused their injuries were part of a pattern of widespread or systematic crimes directed against a civilian population, of which the defendants had knowledge, and that their acts fit into such pattern.9 Genocide requires proof that the defendant intended to destroy, in whole or in part, a national, ethnic, racial, or religious group.10 War crimes require proof that the acts occurred in the context of an armed conflict.11 The problem is how to establish a series of facts that are likely to be beyond the knowledge of the victim; those who are targeted by such massive abuses often will not be able to testify about the broad context within which they were abused. Discovery directed toward an individual defendant is unlikely to produce the needed evidence, although discovery directed at corporate defendants may be much more productive. In Doe v. Karadzic,12 for example, in order to put the plaintiffs’ eyewitness accounts in the context of widespread ethnic cleansing, the plaintiffs introduced the testimony of a correspondent who had covered the events in Bosnia and traveled with refugees trying to escape, and the expert testimony of a United Nations special investigator. The plaintiffs also introduced photographs and video footage of the detention camps, the bombings of civilian centers, and the defendant’s own statements.13 Plaintiffs may also seek to introduce Country Reports on Human Rights Practices by the U.S. Department of State and other government documents, as well as human rights reports from such groups as Amnesty International or Human Rights Watch.14 To avoid problems introduc8 9

See discussion of testimony of human rights experts in Section C. For a discussion of the elements of crimes against humanity, see Chapter 7, Section

E.2. 10

For a discussion of the elements of genocide, see Chapter 7, Section E.1. For a discussion of the elements of a war crime, see Chapter 7, Section E.3. 12 Civ. No. 93-0878 (S.D.N.Y. Oct. 4, 2000) (final judgment). 13 For a discussion of the use of experts to place the injuries of the plaintiffs and the wrong-doing of the defendants in the context of widespread atrocities, see Section C. 14 See Doe v. Saravia, 348 F. Supp. 2d 1112, 1119, 1121 (E.D. Cal. 2004) (citing the Report of United Nations Commission on the Truth in El Salvador and findings of the Inter-American Commission on Human Rights). See also Mehinovic v. Vuckovic, 198 F. 11

508 International Human Rights Litigation in U.S. Courts

ing such documents into evidence, practitioners should prepare in advance to authenticate foreign documents and to respond to hearsay objections to human rights reports. When the defendants are multinational corporations, there are additional issues of proof. A key issue may be whether a defendant parent company based in the United States is liable for conduct that occurred abroad, either directly or through its subsidiary. In the Unocal cases, for instance, the state court held a separate evidentiary hearing on the issue of whether the overseas subsidiary and the parent company defendants were alter egos.15 After finding they were not alter egos, the judge held that the issue of whether the subsidiary was the agent of the parent could be separately decided by a jury at trial. In Bowoto v. Chevron, the court divided the case, permitting Phase I discovery on the relationship between the corporate parents and the subsidiary. At the close of Phase I, the defendants moved for summary judgment, which was denied,16 and discovery proceeded to issues of the relationship of the defendants and the subsidiary to the military and to the human rights abuses. Whatever procedure the court follows in addressing the issues peculiar to corporate defendants, the plaintiffs must be prepared to present evidence about how the corporation is structured and organized, as well as to meet the evidentiary issues common to all human rights claims. B. PROOF OF DAMAGES 1.

Compensatory Damages

Past cases have awarded damages for the full range of injuries suffered by the plaintiffs, including medical expenses, lost income, and pain and suffering. Proof of compensatory damages is basically the same as in other tort cases. As in any damage case, the size of the award may depend upon submission of detailed proof of the harm suffered by the victims. The trier of fact will want to base the damage award on firm numbers, wherever possible. Victims of gross human rights abuses may be able to present compelling testimony about the impact of that abuse on their lives. It is often important, Supp. 2d 1322, 1329, 1340 (N.D. Ga. 2002) (citing a decision of the International Tribunal for the former Yugoslavia and U.S. DEPT. OF STATE, COUNTRY REPORT ON HUMAN RIGHTS PRACTICES FOR 1992, BOSNIA-HERZEGOVINA to establish background facts). 15 Doe v. Unocal, BC 237980 (Cal. Super. Ct. filed Oct. 4, 2000); Roe v. Unocal, BC 237679 (Cal. Super. Ct. filed Oct. 4, 2000). 16 Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1233 (N.D. Cal. 2004).

Proving a Case 509

however, to supplement the victim’s statement with supporting documentation. Physical and emotional harm can be documented through the statements of medical doctors and therapists. If the plaintiffs are not under the care of a medical expert, they can be sent for evaluations.17 In particular, a therapist can explain the concept of post-traumatic stress syndrome, a recognized psychological problem that explains the long-term impact of trauma such as torture. Lay witnesses may also be competent to testify about changes in the victim’s personality after the abuse. Doctors can submit evidence about physical harm. Where the harm is obvious, the trier of fact may be generous even in the absence of documentation, but the safer course is to submit as extensive a record of harm suffered as possible under the circumstances. Other proof issues are no different from other tort cases. Bills and receipts should be introduced to document out-of-pocket expenses. An economist can be recruited to determine the value of lost income. In some cases, consideration should be given to omitting evidence of lost income: The fact that the income loss is so little by U.S. standards may lower the award for other aspects of the damages. However, notions of compensation and restoring the status quo ante are flexible: if the plaintiffs have been forced to flee their homeland and establish a new life in a foreign country, their financial needs may be far higher than in their home country. Most of the plaintiffs in Xuncax v. Gramajo, for example, were subsistence farmers from Guatemala who were living in California when the lawsuit was filed.18 While their lost income, measured in U.S. dollars, might be very low, the amount they needed to establish comparably comfortable lives in the United States was much, much greater. 2.

Punitive Damages

All of the human rights judgments to date have included hefty punitive damage awards.19 In general, punitive damages are appropriate where the defendant’s conduct is willful, wanton, or malicious, or it demonstrates a reckless indifference to the rights of others or an evil motive.20 Punitive damages 17

Where possible, counsel should make referrals to physicians and psychologists who have extensive experience dealing with survivors of torture and have developed a special understanding of the issues they face. See supra note 6. 18 886 F. Supp. 162 (D. Mass. 1995). 19 In cases filed against foreign governments, however, punitive damages may not be permitted. See Chapter 5. 20 Smith v. Wade, 461 U.S. 30, 46-48 (1983).

510 International Human Rights Litigation in U.S. Courts

serve both to punish the defendant and to deter others from similar conduct.21 Proof to support an award of punitive damages, therefore, begins with evidence of the intentional and atrocious abuse inflicted on the plaintiff. It also includes evidence of the defendant’s entire career of human rights violations. In order to assess the overall impact of the defendant’s egregious misconduct, individuals who have suffered at the hands of the same defendant may testify, along with experts familiar with the defendant’s history of similar activities and role in a larger human rights context. Finally, the level of punitive damages depends in part upon the wealth of the defendant: To punish a wealthy person or a multinational corporation, a relatively high level of damages must be assessed. Thus, any evidence as to the financial resources of the defendant should be presented to the trier of fact. C. EXPERT WITNESSES The Federal Rules of Evidence permit expert testimony if it will assist the trier of fact: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.22 Once qualified as an expert, the witness can rely on information of a type “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”23 International human rights cases rely heavily on expert testimony both to establish the facts underlying the case and to explain the applicable law. As a general rule of thumb, an expert witness should be someone the judge and jury will find inherently credible because of personal style as well as credentials. Former U.S. government officials can make excellent expert witnesses.24 Academics and human rights monitors are usually effective, 21

Fila´rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 866 (E.D.N.Y. 1984) (damage decision on remand) (“Punitive damages are designed not merely to teach a defendant not to repeat his conduct but to deter others from following his example.”). 22

FED. R. EVID. 702.

23

FED. R. EVID. 703.

24

A former U.S. ambassador to the Philippines testified at the Marcos trial, along with a former official of the Department of State. In re Estate of Marcos Litigation, Civ. No.

Proving a Case 511

especially if they have some experience testifying or otherwise speaking to the public. Finally, since most of these cases are handled on a volunteer basis, the ideal expert witness is willing to participate in the case for free. Some counsel believe that the credibility of the expert is enhanced if there is a fee arrangement, and fees for work performed are paid prior to the expert’s deposition. An added caution: the Federal Rules require early disclosure of the names of expert witnesses.25 Since a trial may be delayed and rescheduled many times, counsel should include alternate names on the list, to guarantee that the crucial expert testimony will be available at the trial. 1.

Setting the Stage

An expert can set the context in which the human rights violations occurred. In Doe v. Karadzic, for example, the plaintiffs presented Cherif Bassiouni, former chair of a commission of experts created by the U.N. Security Council to investigate violations of international humanitarian law in the former Yugoslavia.26 However, he did not testify about the particular war crimes or acts of genocide committed against the plaintiffs. Instead, he located Bosnia on the map; described the break-up of Yugoslavia and the relationship of Serbia to Bosnia; and explained the position of the defendant as head of the Bosnian Serbs. Eyewitnesses, including the plaintiffs themselves and a reporter, described the abuses inflicted on the plaintiffs. Defendant’s role was proven in part through videos of Karadzic obtained from television broadcasts. The trier of fact, be it judge or jury, may need considerable assistance in understanding the facts of a human rights case. Gross human rights violations of the kind alleged in these cases are far removed from the everyday reality of most people in the United States. The human rights expert can put the facts underlying the lawsuit into a context that helps the judge or jury to believe that unspeakable abuses of such a nature did happen at that particular time and place. Thus, the expert witness in Abebe-Jiri first explained the political events in Ethiopia leading up to the torture of the plaintiffs, and then discussed the massive scope of human rights abuses in that country during the relevant time period.27 One purpose of this testimony was to give the judge enough background to properly evaluate the plaintiffs’ testimony, which followed. MDL 840 (D. Haw. Jan. 3, 1995), aff’d, Hilao v. Estate of Marcos, 103 F.3d 767, 776 (9th Cir. 1996). 25 See FED. R. CIV. P. 26(a)(2). 26 Civ. No. 93-0878 (S.D.N.Y. Oct. 4, 2000) (final judgment) 27 Abebe-Jiri v. Negewo, 1993 WL 814304 (N.D. Ga. Aug 20, 1993) (final judgment).

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Testimony by human rights experts may also provide key factual links necessary to prove the plaintiffs’ case. This is particularly important in command responsibility cases, which often depend upon circumstantial evidence about the defendant’s role in the security forces and in a pattern of human rights abuses. Experts on human rights and on the command structure of security forces have been allowed to testify about both the range and type of human rights violations committed during the relevant time period and the role of the defendant. Experts have also been allowed to voice their opinion that what happened to the plaintiffs is consistent with a program of abuses at the time and that the defendant bears responsibility for that program. In the consolidated cases against Ferdinand Marcos’ estate, the judge twice rejected the defendant’s attempt to bar testimony by experts on human rights in the Philippines during Marcos’ regime.28 Experts were allowed to testify about Marcos’ relationship to the Philippine security apparatus, the pattern of human rights abuses for which Marcos was responsible, and the historical context in which the abuses alleged in the lawsuit occurred.29 They specifically based their testimony not just on personal knowledge but on reports by U.S. government agencies and U.N. agencies, and the files and publications of non-governmental human rights organizations, all sources “reasonably relied upon by experts” in the field. Command structure testimony from a military expert can also be of great importance. Plaintiffs in Paul v. Avril, for instance, relied on testimony from an expert on the Haitian military who concluded that the individuals who detained and tortured the plaintiffs were under the direct command and control of defendant Avril.30 A second human rights expert supported this conclusion, stating that the security forces would not have arrested individuals as prominent as the plaintiffs without an order from Avril. In Doe v. Lumintang, an expert on the Indonesian military testified about the structure of the Indonesian army.31 He was able to authenticate a military manual published over the signature of the defendant and explain the significance of references in the military manual to the use of torture. 28 In re Estate of Marcos Litig., Civ. No MDL 840 (D. Haw. Jan. 3, 1995), aff’d, Hilao v. Estate of Marcos, 103 F.3d 767, 776 (9th Cir. 1996). 29 Id. 30 901 F. Supp. 330 (S.D. Fla. 1994). 31 Civ. No. 00-674 (D.D.C. Sept. 13, 2001) (findings of fact and conclusions of law); see also Doe v. Lumintang, Civ. No. 00-674 (D.D.C. Nov. 10, 2004) (reversing default judgment).

Proving a Case 513

Expert testimony of this nature is crucial to the proof of what actually happened to the plaintiffs, and also to the claim for punitive damages. In the Avril case, the expert testified that human rights abuses during the time Avril was in control of the military government were among the worst in the history of Haiti. This testimony strongly supported a demand for punitive damages both to punish Avril and to deter others from similar conduct. Experts can also provide credence to the events described by the plaintiffs. In Lumintang, a geographer reviewed satellite photographs of East Timor to testify that the fires that burned there following the vote against Indonesia were deliberately set. A medical expert with experience with torture victims was able to describe how one of the plaintiffs in Doe v. Karadzic32 suffered fractures to most of his ribs and how other parts of his body revealed injuries that were not accidental in nature. This supplemented and gave credence to the plaintiff’s own testimony about what had occurred. Thus, a properly qualified expert can testify to many of the key questions at issue in a human rights case. In several cases against corporate defendants, plaintiffs have proffered expert testimony about the environmental damages plaintiffs’ communities suffered as a result of the defendant’s activities in the areas. This testimony is relevant to defendant’s claims about the plaintiff’s motives in protesting defendant’s activities. The extent to which such testimony will be admitted remains an open question. 2.

Corporate Structure and Financial Documents

The world of multinational corporations may also be far from the experience of members of the jury and perhaps even the judge. Accountants and academics from business schools can help describe the significance of facts and documents relevant to the relationship between the defendant parent corporation and the subsidiary operating abroad. This is especially important in presenting to a jury evidence that the subsidiary is the agent of the parent corporation.33 Similarly, an expert can provide testimony about the pattern of payments made to the military by the corporation. Again such evidence is relevant to the liability of a corporation for the conduct of military forces that directly committed the human rights abuses at issue.34 32

Civ. No. 93-0878 (S.D.N.Y. Oct. 4, 2000) (final judgment).

33

The liability of the parent for the conduct of the subsidiary, its agent, is described in Chapter 12. 34

For discussions of the potential liability of corporation for the conduct of the military, see Chapter 10 and Chapter 12, Section B.

514 International Human Rights Litigation in U.S. Courts

3.

Local Law and International Law

A court may choose to apply the law of the country in which the offenses took place and/or international law to decide some of the issues raised by the case. Foreign law can be proved through submission of written material or testimony, whether or not otherwise admissible under the Federal Rules of Evidence.35 Given that the issues of legal liability for human rights violations raised by these cases are likely to be complex, it is unlikely that mere submission of copies of foreign statutory provisions will be sufficient. An expert is almost always necessary. International law is particularly dependent upon expert opinion, because it is an evolving body of law that reflects the practices of states, treaties, and both international and domestic judicial decisions. Both U.S. and international law specifically point to the writings of experts as evidence of the content of international law: “What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law.”36 Determination of international law is a matter of law for the court, which may consider “any relevant material or source, including expert testimony.”37 The statements and opinions of international experts have been recognized as not only shedding light on international law, but as a legitimate source of that law. Thus, international law can be determined by referring to: [T]he works of jurists and commentators who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.38 35

See FED. R. CIV. P. 44.1 (“The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”). 36 37

United States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820).

RESTATEMENT (THIRD) § 113(2) (1987). 38

OF

FOREIGN RELATIONS LAW

OF THE

UNITED STATES

The Paquete Habana, 175 U.S. 677, 700 (1900) (emphasis added). See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 103(2) (1987) (“In determining whether a rule has become international law, substantial weight is accorded to . . . (c) the writings of scholars.”); § 102 note 1 (referring to Article 38 of the Statute of the International Court of Justice, infra, as an authoritative statement of the sources of international law); Statute of the International Court of Justice, art. 38(1)

Proving a Case 515

Perhaps the most basic international law issue raised by all of these cases is the Alien Tort Statute (ATS) definition of the underlying “tort . . . in violation of the law of nations.”39 Although some issues have been thoroughly litigated at this point, defendants and some judges continue to challenge even norms that appear to be well settled. As a result, counsel should consider submitting expert testimony even on well-settled norms. In addition, it will be useful to call upon experts to demonstrate that the abuses suffered by a particular plaintiff meet the international definitions. The definitions of the abuses actionable under the ATS are issues of law to be decided by the judge. In Chavez v. Carranza, for example, plaintiffs filed a successful motion for summary judgment to obtain a pre-trial ruling from the court that the abuses they alleged constituted torture and fell within the reach of the ATS.40 Plaintiffs still had to prove to the jury that the abuses had occurred as they claimed, but the judge instructed the jury that, if they found the facts to be true, they should find that the plaintiffs had been tortured. International law experts can also be called, if necessary, to submit testimony as to any other aspect of international law that is at issue in a particular case. The appeals of the dismissal of the two Karadzic cases, for example, relied upon international scholars’ briefs explaining that international law binds individuals and de facto states, as well as recognized governments.41 D. TRIAL Some of the issues relevant to preparing a human rights case for trial have been addressed in previous sections of this and other chapters. Many are identical to those faced in bringing any complicated case to trial. This section will focus on issues that are particularly relevant to human rights litigation, including the traumatized condition of the plaintiffs and witnesses; the likely strangeness of the subject matter to the judge and jury; and the presentation of these two issues in a manner that holds the attention of the trier of fact. (listing applicable “sources” of international law). See discussion of proving international law in Chapter 3, Section C. 39 28 U.S.C. § 1350. 40 413 F. Supp. 2d 891 (W.D. Tenn. 2005) (appeal pending). 41 See Brief Amici Curiae of the International Human Rights Law Group on behalf of Law Professors, and Memorandum Amicus Curiae of Law Professors, both submitted in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), available at www.ccr-ny.org/humanrightsbook.

516 International Human Rights Litigation in U.S. Courts

Counsel should remember the importance of advance logistical planning. If plaintiffs and witnesses must be brought to court from foreign countries, travel logistics can be overwhelming. Crucial details include obtaining passports and visas, as well as plane tickets and accommodations. If the case is litigated on a tight budget, as is likely, it will be necessary to plan in advance what costs can realistically be covered and how the trial can proceed with the minimum necessary witnesses. If the trial judge refuses to set a firm trial date in advance, counsel may choose to limit the number of witnesses, since last-minute travel arrangements can be very expensive. The witness list submitted in advance in federal court should include alternate names to guard against last-minute unavailability, especially if there is no firm trial date ahead of time. Most victims of human rights abuses have suffered significant trauma. In addition to the purely logistical concerns of lodging and translators to help the plaintiffs and witnesses navigate a strange city in a foreign language, attention should be paid to assuring psychological and medical services. The preparation and trial will cause them to relive the horrific abuses that they suffered and witnessed. Anticipating the potential need for specialized care will avoid last minute scrambling in the midst of trial. Testifying in a human rights trial may endanger the lives of the witnesses or their families. Attorneys must check that all plaintiffs and witnesses have thought carefully about their own participation, the publicity they will receive, and the possible risk involved. The decision, of course, must be made by the plaintiffs and witnesses, but the U.S. lawyers should provide the information they need to make such a decision, including explaining the likelihood that their testimony will be made public and be available to possible enemies. Counsel should be prepared to alter trial plans in the likely event that some of the witnesses decide that the risks are just too great. Motions in limine may alert the judge to the need to protect witnesses during trial. Judges have been persuaded to protect the identity of the plaintiffs and witness by permitting pseudonymous testimony and by permitting witnesses to testify behind screens.42 Prior to trial, the plaintiffs and other witnesses must also be prepared for the likely gulf between them and the U.S. judicial system. They may be completely taken aback by the tightly orchestrated nature of a trial and the limits it imposes on what they are allowed to say and how they are permitted to say it. Their 42

In Doe v. Constant, Civ. No. 04-10108 (S.D.N.Y. Oct. 24, 2006) (final judgment), the court accepted the precautions requested in the plaintiffs’ motion in limine, available at www.ccr-ny.org/humanrightsbook.

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testimony must be carefully prepared so that they can tell their story coherently in the controlled style expected by our evidentiary rules. Witnesses must also be prepared for the experience of testifying at trial. Given how personal and traumatic much of the testimony is likely to be, they may be upset by objections or by the judge’s refusal to allow certain testimony. Plaintiffs may find it difficult to understand the need for corroborating evidence and the court’s refusal to accept hearsay or opinions about what happened to them or their relatives. The dismissal of a count for failure of proof could be devastating if the plaintiff has not been adequately warned about that possibility. Further, the plaintiffs—even more so than other witnesses—must be prepared for the experience of cross-examination. The defendant may try to portray the political activities of the victims as relevant to his defense. Questions about political activities may put the plaintiffs at an unnecessary disadvantage: No political activity provides justification for human rights abuses such as torture and summary execution, even in the extreme case in which the political activity itself violates the law or involves violence. However, a victim who has engaged in terrorist activities may have difficulty engaging the sympathies of the judge or jury and may not be found credible. In the Abebe-Jiri trial, the defendant repeatedly charged that plaintiffs belonged to a radical political party that had concocted the allegations against him to further its own aims. Plaintiffs’ counsel, anticipating such questions, had asked the plaintiffs in advance about their political activities but prefaced the questions with an explanation that made clear that they had a right to engage in such activities and no need to hide any involvement they might have had.43 Persons who suffered torture and other grave violations of their human rights may present their testimony in a very low key and even monotone manner. The team trying the case of Doe v. Karadzic was cautioned by a jury expert not to be concerned about the emotionless nature of the plaintiffs’ testimony.44 As the expert explained, “U.S. juries do not punish the stoic.” This excellent advice was reflected in the substantial size of the $4.5 billion judgment. If witnesses are testifying through an interpreter, the quality of the translation is crucial. The jury is likely to focus on the person speaking English 43 Abebe-Jiri v. Negewo, 1993 WL 814304 (N.D. Ga.) (final judgment), aff’d, 72 F.3d 844 (11th Cir. 1996). In fact, all three stated they had been apolitical at the time of their detention and torture and continued to engage in no political activities. 44 Civ. No. 93-0878 (S.D.N.Y. Oct. 4, 2000) (final judgment).

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and may lose track of the underlying emotion and humanity of the witness. A good rapport between the interpreter and the witness can be a tremendous help. Given the problems of bringing plaintiffs and witnesses to the trial, videotaped testimony may be necessary. As in any trial, pay close attention to the quality of the videotape, so as not to put the judge or jury to sleep as they watch a grainy, gray recitation of the facts of the case. Most judges and jurors are accustomed to high-technology television and movie productions: if at all possible, counsel should arrange for a professional to “produce” videotaped testimony. The trial team should pay attention to lighting, the arrangement of chairs, and the clothing worn by the lawyers and witnesses—and keep the video to an hour or less! If the video is tedious or otherwise difficult to follow, it may actually be better to read the transcript to the jury, rather than show the videotape. It may be possible to obtain court permission to have a professional actor read the transcript, although a court is more likely to accept a reading by a member of the legal team or its support staff. If documents will be introduced into evidence, it may be necessary to obtain translations and authenticated copies—a process that can require several steps in the originating country.45 It is also helpful to display key documents to the jury through posters or a PowerPoint presentation or by providing copies of the document (publishing the document) to the jury. In determining the order of trial witnesses, plaintiffs’ attorneys must keep in mind the likelihood that the judge or jury will need to be introduced to the case through evidence that puts the claims into their historical and political context. Expert testimony is crucial and often a good way to begin a trial and set the stage for the testimony to come, particularly when the plaintiffs and other fact witnesses are from a foreign country and testify through an interpreter. The expert—someone the judge or jury sees as a known and familiar quantity—can help bridge the likely cultural and language gap between the plaintiffs and other witnesses and the trier of fact. Even where the expert testimony is inadmissible to prove the fact of widespread human rights abuses, the expert may be able to testify about the availability of information about widespread abuses, because it tends to prove that the defendant knew or should have known about the abuses. Another key to determining the order of witnesses is the medium through which the testimony is given. Plaintiffs’ counsel should try to set the order of presentation so that each day there is a mix of live testimony without translation, live testimony with translation, video-testimony, documents and testimony read into the record (and projected on a screen) by a member of the trial team. 45

See FED. R. CIV. P. 44; FED. R. EVID. 901, 902.

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Finally, the litigation team should think in advance about jury instructions addressing definitions of the international law violations; state action or color of law; command responsibility; and joint venture liability or agency, each of which is discussed at length in prior chapters. Jury instructions must explain complicated international law issues in language the jury can follow. They also must accurately reflect the state of the law in an area that is probably unfamiliar to the trial judge. If these legal points have not been decided in preliminary proceedings, plaintiffs should brief the law underlying the definitions and other standards reflected in the jury instructions.46 E. ADDITIONAL EVIDENTIARY ISSUES Evidentiary issues in human rights cases are as varied as those in any complex federal lawsuit. However, some issues of proof commonly arise in the context of human rights litigation. A few of these are discussed below. Human rights plaintiffs routinely rely on statements contained in U.S. State Department Country Reports on Human Rights; the results of U.N. investigations; and the reports of foreign governments investigating abuses by previous regimes. Such documents are admissible under Federal Rule of Evidence 803(8)(C), the hearsay exception for reports produced by public agencies. Under this rule, proffered evidence is presumed to be admissible so long as it contains “factual findings resulting from an investigation made pursuant to authority granted by law.”47 As noted elsewhere, expert testimony is pivotal to a plaintiff’s case, particularly where plaintiffs must prove the existence of widespread or systematic human rights violations necessary to establish crimes against humanity or genocide. These widespread patterns of abuses often do not involve the parties directly and are not subject to discovery. Consequently, proving that such conduct occurred entails recourse to experts. Expert witnesses are permitted to testify to opinions based on hearsay or other inadmissible evidence not admitted at trial if “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”48 46

Sample jury instructions are available at www.ccr-ny.org/humanrightsbook. FED. R. EVID. 803(8)(C); Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000). 48 FED. R. EVID. 703; United States v. Feliciano, 223 F.3d 102, 121 (2d Cir. 2000); United States v. Locascio, 6 F.3d 924, 938 (2d Cir. 1993). Human rights reports that contain hearsay may be admissible directly, without expert reliance, as evidence of the defendants’ knowledge of the likelihood of human rights violations. See FED. R. EVID. 801(c) (a statement is only hearsay if offered for the truth of the matter asserted). 47

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Defendants may object that reference to human rights abuses other than those that led to the plaintiffs’ injuries are irrelevant and prejudicial. However, such evidence may be relevant to prove the defendant’s knowledge or intent. In Cabello, for example, the court held that to prove the claim of crimes against humanity, the plaintiffs had to show the existence of a widespread or systematic attack directed against a civilian population.49 Additionally, to prove conspiracy or aiding and abetting at trial, the plaintiffs were required to prove that the defendant had knowledge of a death squad’s illicit purpose. To prove these elements, evidence relating to the mistreatment or killing of other prisoners was not only relevant but essential. Frequently, much of the evidence will be in the form of statements made by persons other than the defendant. In corporate cases, in addition to a defendant’s own internal statements, there will likely be reports produced by their contractors and statements made by military officials working in concert with them. In cases involving government officials—military commanders or political leaders—the statements may come from lower level officials. Such statements are admissible under Federal Rule of Evidence 801(d)(2)(D), which states that: “A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” Such statements are admissible whether or not the author had personal knowledge of the matters contained therein.50 In Hilao,51 for instance, the court upheld reliance on statements made by military personnel to their victims in determining that an agency relationship existed between defendant Marcos and the individuals who tortured the plaintiffs or their decedents. These statements were then admitted pursuant to Federal Rule of Evidence 801(d)(2)(D). Federal Rule of Evidence 801(d)(2)(E), which provides that the statements of co-conspirators are not hearsay, may also be useful. A note to that rule explains that it is intended to carry forward the doctrine that a co-venturer is a co-conspirator. Finally, excerpts of deposition transcripts and videotapes of depositions taken abroad may be subject to challenge because of a failure to comply fully with Federal Rule of Civil Procedure 28(b). Subsection (b)(3) of that rule provides that a deposition may be taken “on notice before a person authorized to administer oaths in the place where the examination is held, either by the law 49 50 51

Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005). Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 96 (3d Cir. 1999). Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).

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thereof or by the law of the United States.” In Cabello, the defendants challenged the deposition excerpts offered because of defects in the oath.52 The court noted that at the commencement of one of the depositions, the plaintiffs had responded to previous objections by offering to procure a Chilean notary authorized to administer oaths under Chilean law. Because the defendant’s counsel declined this offer, the court concluded that depositions conducted after that date were admissible. The court held that the defendant had constructively waived his objections when he declined the offer to remedy the defect.53 F. CLASS ACTIONS Legal issues related to litigating human rights claims as class actions are discussed in Chapter 9, Section E. This section addresses some of the issues that may arise at trial of a human rights class action. One class action filed under the ATS and the Torture Victim Protection Act (TVPA) has been brought to trial, the suit against the estate of former Philippine dictator Ferdinand Marcos.54 In three separate phases, a jury returned a finding of liability on behalf of the class, an award of punitive damages, and an award of compensatory damages. Each phase presented enormous logistical difficulties. Proof of the defendant’s liability to the class, for example, relied not only on direct testimony by survivors of human rights abuses but also on expert testimony about the size of the class and the nature of the injuries to class members.55 While such testimony has been introduced in most human rights cases, it is usually presented to set the stage for understanding the stories told by the individual plaintiffs and to support 52

Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1160 (11th Cir. 2005). Id. (citing Federal Rule of Civil Procedure 32(d)(3)(B), which provides that: “Errors and irregularities occurring at the oral examination . . . in the oath or affirmation . . . and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.”). 54 See In re Estate of Marcos Human Rights Litig. (Hilao v. Marcos), 25 F.3d 1467, 1469 (9th Cir. 1994). Some of the factors relevant to the decision to file a case as a class action are discussed in Chapter 9, Section E. Counsel considering bring a class action claim for human rights violation may want to consult ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS (4th ed. 2002), in particular the section discussing class actions in human rights cases. See, e.g., volume 1, §§ 3:13, 3:15; volume 5, § 16:24. 55 See Ralph G. Steinhardt, Fulfilling the Promise of Filartiga: Litigating Human Rights Claims Against the Estate of Ferdinand Marcos, 20 YALE J. INT’L L. 65, 92-93 (1995); Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 ST. JOHN’S L. REV. 491, 500-02 (1993). 53

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punitive damages. In the Marcos class action, however, expert testimony had the more difficult task of actually defining the defendant’s liability toward a large, unnamed group of class members.56 The defendant’s attorneys vigorously attacked both the admissibility of such testimony and its reliability.57 After the jury found Marcos liable to the class, determination of the damages owed to individual class members was both time consuming and extremely complex. First, the estimated 10,000 class members, scattered throughout the islands of the Philippines and around the world, were notified of their right to submit claims.58 After several extensions of the deadline, nearly 10,000 individuals submitted claim forms,59 far too many to enable each of them to testify about the particular nature of his or her injuries. Representatives of the class then successfully convinced the trial court to allow a novel solution to this problem: The judge appointed a Special Master to review a sample of the claims to: (1) evaluate the authenticity of the claims filed and (2) develop a scale indicating the damages suffered by different types of claimants.60 The Special Master’s findings were then presented to the jury, which determined compensatory damages based upon his recommendations. The award was upheld by the Ninth Circuit.61 56 As Fitzpatrick has noted, to succeed in a class action, where the stories of a few individuals must embody the experiences of a large number, general reporting of patterns of human rights abuse is a virtual necessity. Without it, the jury would have difficulty concluding that a class of similar victims exists and merits compensation. Fitzpatrick, supra note 55, at 500. 57 Id. at 498-500; Brief for Appellant at 34-35, In re Estate of Marcos Litigation, Civ. No. MDL 840 (D. Haw. Jan. 3, 1995). 58 See discussion of possible problems with the claims process in Steinhardt, supra note 55, at 93. In a dispute over the class notification procedures and representation of the interests of the class members, a group of Philippine human rights organizations unsuccessfully sought to intervene in the damages phase of the trial. 59 Philip Shenon, Marcos’ Loot May Be Shared by Filipino Victims, N.Y. TIMES, Oct. 28, 1995, at A3. 60 For example, claimants were grouped into categories such as families of the deceased, torture victims, and those subjected to arbitrary detention for varying time periods. 61 Hilao v. Estate of Marcos, 103 F.3d 767, 787 (9th Cir. 1996). For a discussion of the difficulties that have blocked collection of most of the judgment, see Chapter 21, Section E.

CHAPTER 21 REMEDIES

As civil actions founded in tort law, human rights lawsuits generally seek monetary damages: compensation to make the injured person whole, and punitive damages to deter future abuses. A court may also issue a declaratory judgment, finding that the defendants violated international or domestic law. Injunctive relief is possible, although no court has yet issued an injunction to halt ongoing human rights abuses. This chapter focuses on remedies under the Alien Tort Statute (ATS)1 and the Torture Victim Protection Act (TVPA).2 The chapter does not address remedies under the “state sponsors of terrorism” exception to the Foreign Sovereign Immunities Act (FSIA).3 As described in Chapter 5, the FSIA provisions relating to damages and enforcement of judgments have been revised several times by Congress to enable collection of some damage awards while recognizing the restrictions imposed by sovereign immunity. Damage provisions unique to other grounds for suit are discussed in Chapter 6, including the triple damages provision of the Anti-Terrorism Act4 and the availability of triple damages and attorneys’ fees under the Racketeer Influenced and Corrupt Organizations Act (RICO).5 A. MONETARY DAMAGES Past ATS judgments have awarded compensation for physical injury, pain and suffering, lost income, and property damage, as well as hefty punitive damages. Prior to Sosa v. Alvarez-Machain,6 although the lower courts had not developed a uniform choice of law analysis, all agreed that awards of both compensatory and punitive damages were appropriate. Post-Sosa, the courts 1

28 U.S.C. § 1350. 28 U.S.C. § 1350 (note). 3 28 U.S.C. § 1605(a)(7). 4 18 U.S.C. § 2333(a). The statute also authorizes recovery of “the cost of the suit, including attorney’s fees.” Id. 5 18 U.S.C. § 1961 et seq. 6 542 U.S. 692 (2004). 2

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apply a federal common law approach that also mandates awards of both compensatory and punitive damages. 1.

The Sosa/Fila´rtiga Approach

On remand from the Second Circuit, the district court in Fila´rtiga set out to craft an approach to damages that would permit remedies appropriate to the heinousness of the torts at issue.7 The court held that remedies should be governed by federal common law, which incorporates international law and is flexible enough to respond to the interests served by the underlying statute: By enacting Section 1350 Congress entrusted that task to the federal courts and gave them power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into United States common law.8 Because international law does not generally address issues of damages, such rules should be developed by the court as a matter of federal common law. Applying a federal common law approach, Fila´rtiga held that the court should fashion remedies that “give effect to the manifest objectives of the international prohibition against torture.”9 Courts do so by looking at the various possible bodies of law, including the law of the place where the injuries occurred, state law, international law, and federal law.10 Applying this approach in Fila´rtiga, the court found that a punitive damage award was essential to the vindication of the international rights at stake and awarded punitive damages of $5 million each to Joel and Dolly Fila´rtiga.11 Fila´rtiga stands for the propositions that federal common law sets the framework for damage determinations in an ATS action and that punitive damages are appropriate in such cases. 7 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 862-63 (E.D.N.Y. 1984). The Second Circuit had previously left open the issue of the choice of law to be applied to determine damages. Fila´rtiga v. Pen˜a-Irala, 630 F.2d 876, 889 (2d Cir. 1980). The question for the district court on remand, as that court saw it, was whether “the ‘tort’ to which the statute refers mean[s] a wrong ‘in violation of the law of nations’ or merely a wrong actionable under the law of the appropriate foreign state[.]” Fila´rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 862 (E.D.N.Y. 1984). 8 Id. at 863. 9 Id. at 865. 10 See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 783 (9th Cir. 1996). 11 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984).

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In Xuncax v. Gramajo, a case decided pre-Sosa, the district court provided a cogent explanation of the need for a federal common law approach to ATS claims.12 Xuncax recognized that applying the law of the country where the abuses took place could greatly undervalue the harm caused by human rights violations. The federal common law approach advances the development of a uniform law governing international human rights violations, one that does not treat torture in Guatemala different from torture in Argentina or the Philippines. Xuncax thus concluded that “looking to domestic tort law” would “mute[] the grave international law aspect of the tort, reducing it to no more (or less) than a garden-variety municipal tort.”13 This approach is consistent with Sosa and has been followed by post-Sosa decisions.14 Sosa clarified that the ATS directs federal courts to use their common law powers to recognize claims for violations of international law.15 As discussed at greater length in Chapter 2, Section C, international law defines the substantive violation, while federal common law supplies all ancillary rules, including determining the remedies available.16 Professor Casto explains this distinction by reference to traditional tort law concepts: The new cause of action envisioned by Sosa is unintelligible unless the well-established distinction between rights and remedies is kept clearly in mind. The concept of a cause of action requires a plaintiff to establish that a defendant has violated a legal norm designed to protect 12

886 F. Supp. 162, 181-83 (D. Mass. 1995). Id. at 183. The Fila´rtiga district court considered various sources as part of the federal common law analysis, looking first to the law of the country where the violations took place. The court chose not to apply local law to the extent that it was inconsistent with the goals of the international law prohibitions at issue in the case. Fila´rtiga v. Pen˜aIrala, 577 F. Supp. 860, 862-64 (E.D.N.Y. 1984). Since foreign law will be irrelevant if it does not satisfy the purposes of the statute, later cases have skipped the step of looking at foreign law, turning instead directly to principles that are consistent with the goals of the ATS. 14 See the discussion of compensatory and punitive damages in the following two subsections. 15 Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25 (2004). See also Sarei v. Rio Tinto, PLC, Civ. Nos. 02-56256, 02-56390, 2007 WL 1079901 (9th Cir. Apr. 12, 2007), reh’g en banc granted 2007 WL 2389822. 16 “The norm that defendant is alleged to have violated comes from international law, and domestic law supplies all other rules of decision.” William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 RUTGERS L.J. 635, 641 (2006). 13

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the plaintiff and that the plaintiff is entitled to a remedy, which typically will be damages in ATS litigation. Under this traditional dichotomy, the norm that is enforced in ATS litigation comes from international law . . . [The remedy is] a purely domestic tort remedy [governed by] traditional, well-established concepts of domestic, federal common law.17 ATS damage claims are thus governed by federal common law, which directs the courts to develop remedies appropriate to the goals of the statute, including both compensatory and punitive damages. 2.

Compensatory Damages

Compensatory damage awards in ATS and TVPA cases have included the whole range of economic and psychological losses, including physical injury, pain and suffering, lost income, and property damage.18 Briefing and proving compensatory damages is mostly a factual matter: plaintiffs must document their injuries in a manner that adequately conveys to the judge or jury the trauma suffered by the victims of human rights abuses.19 3.

Punitive Damages Under the Alien Tort Statute (ATS)

In the United States, punitive damages are intended both to punish defendants and to deter others from following in their footsteps.20 Punitive damages are awarded where the defendant’s conduct is willful, wanton or malicious, or demonstrates a reckless indifference to the rights of others or an evil motive.21 All ATS damage judgments have included punitive damages.22 Although pre-Sosa opinions often failed to spell out the legal basis for such 17

Id. at 638-39. See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 HUM. RTS. L. REV. 203, 234-37 (2006), reviewing awards under the ATS. 19 See Chapter 20, Section B, on proving compensatory damages. 20 Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 866 (E.D.N.Y. 1984). 21 Smith v. Wade, 461 U.S. 30, 51 (1983). 22 See, e.g., Arce v. Garcia, 434 F.3d 1254, 1256 (11th Cir. 2006); Cabello v. Ferna´ndez-Larios, 402 F.3d 1148, 1151-52 (11th Cir. 2005); Hilao v. Estate of Marcos, 103 F.3d 767, 787 (9th Cir. 1996); Abebe-Jira v. Negewo, 72 F.3d 844, 846 (11th Cir.), cert. denied, 519 U.S. 830 (1996); Tachiona v. Mugabe, 216 F. Supp. 2d 262, 267-69 (S.D.N.Y. 2002); Mehinovic v. Vukovic, 198 F. Supp. 2d 1322, 1358-60 (N.D. Ga. 2002); Doe v. Karadzic, Civ. No. 93-0878, 2001 WL 986545 (S.D.N.Y. Aug. 28, 2001); Fila´rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984). 18

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damages, most seem to have applied the federal common law approach set forth by Fila´rtiga, which has now been endorsed by Sosa.23 With this large body of precedent, it should now be clear that federal common law authorizes punitive damages in ATS cases. If a court rejects the federal common law approach and chooses to look at international law or the law of the place where the abuses took place, the issues are more complicated. Some modern international decisions point to a recognition of punitive damages,24 although earlier sources suggest that international law does not provide for such damages.25 However, international law and the domestic laws of many countries include the related concept of “moral” damages, which overlaps with the U.S. concept of punitive damages. Thus, although lawyers from civil law countries routinely say their legal systems do not include punitive damages, moral damages take into account the egregiousness of the defendants’ acts and their resources, both of which U.S. law considers as factors in determining punitive damages.26 Plaintiffs’ attorneys in several cases have submitted experts’ affidavits stating that moral damages in the civil law countries at issue have a “punitive dimension.” In Xuncax v. Gramajo, for example, the plaintiffs’ expert stated: “[M]oral” damages under Guatemalan law do partake of a “punitive dimension,” as that concept is applied in the United States. “Moral” damages take into consideration the heinousness of the crime and whether it was intentional or accidental. The more heinous the tort, the larger the damage award. Further, “moral” damage awards also consider the relative economic strength of the parties: it may be considered equitable to increase the tortfeasor’s liability in order to have a substantial economic impact, if he is a person with extensive resources. Thus, in practice, the determination of the amount of 23 Given that U.S. law did not permit punitive damages against an estate, the court in the consolidated cases against the estate of Ferdinand Marcos turned to the law of the Philippines, which permitted punitive damages awards against estates, thus vindicating the purposes of the ATS. Trajano v. Marcos (In re Estate of Marcos Litigation), 978 F.2d 493, 496 (9th Cir. 1992). 24 See discussion in Fila ´ rtiga v. Pen˜a-Irala, 577 F. Supp. 860, 865 (E.D.N.Y. 1984). 25 Vela ´ squez Rodriguez—Compensatory damages, 1989 Inter-Am. Ct. H.R. (ser. C) No. 7, ¶ 39 (Judgment of July 21, 1989), reprinted in 11 HUM. RTS. L.J. 127, 129 (1990); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 901 (1987). 26 See Doe v. Saravia, 348 F. Supp. 2d 1112, 1158 n.4 (E.D. Cal. 2004).

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“moral” damages under [Guatemalan law] does go beyond strict compensation to the victim.27 Under this standard, a judgment based on the law of a civil law system could include damages that reflect the factors that the U.S. system considers when awarding punitive damages. 4.

Punitive Damages Under the Torture Victim Protection Act (TVPA)

The TVPA states that an individual who subjects another to torture or summary execution “shall, in a civil action, be liable for damages.”28 No specific definition of “damages” is offered in the statute or the legislative history, nor are punitive damages mentioned. The House Report, however, cites Fila´rtiga (which awarded punitive damages) extensively and states that the purpose of the TVPA is to clarify and “enhance” the remedy provided by the ATS.29 The Supreme Court has made clear that punitive damages can be awarded even in the absence of a specific authorization in the statute creating the tort liability.30 In its decision in the consolidated Gramajo cases, the district court concluded that the TVPA contemplates punitive damages for two basic reasons. First, the legislative history indicates strong approval for Fila´rtiga, which included a large punitive damage award.31 Second, this same legislative history indicates that the TVPA was enacted not just to compensate victims, “but with an eye toward eradicating the evil [of torture] altogether”; the prevention and deterrence of “heinous behavior” require an award of punitive damages.32 Later decisions have concurred, awarding both compensatory and punitive damages.33 27

Declaration of Alejandro M. Garro, submitted in Xuncax v. Gramajo, 886 F. Supp. 162, 181-83 (D. Mass. 1995) (citation omitted), available at www.ccr-ny.org/humanrightsbook. 28 29

28 U.S.C. § 1350 (note), § 2(a).

H.R. REP. NO. 102-367, at 4 (1991). Smith v. Wade, 461 U.S. 30, 56 (1983) (upholding award of punitive damages under 42 U.S.C. Section 1983, although the statute makes no reference to punitive damages). The Court has also rejected constitutional challenges to the practice of awarding punitive damages (see TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 453-54 (1993); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991)), “so long as they are not ‘grossly excessive’ ” and are “in proportion to the reprehensibility of the act.” BMW v. Gore, 517 U.S. 559, 574-75 (1996). 31 Xuncax v. Gramajo, 886 F. Supp. 162, 199 (D. Mass. 1995). 32 Id. at 199-200. The Gramajo court declined to award punitive damages under the TVPA, however, because the TVPA was being applied retroactively to conduct that 30

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B. INJUNCTIVE RELIEF AND DECLARATORY JUDGMENTS Experience with injunctive relief in human rights cases has been limited. An injunction could be extremely important in a case involving ongoing human rights abuses: if effectively enforced, an injunction would actually halt human rights abuses rather than award damages after the fact to those injured by those abuses. Convincing a court to issue such an injunction and finding a means to enforce it, however, are likely to be difficult when the abuses are taking place outside of the United States. Although the federal rules permit injunctions ordering defendants to take actions in foreign countries,34 courts are reluctant to issue injunctions that will be difficult to enforce or lead to conflict with foreign governments.35 occurred prior to its passage. Id. at 200. The court relied on language in Landgraf v. USI Film Prods., 511 U.S. 244, 281 (1994), indicating that retroactive imposition of punitive damages is not only disfavored, but would raise constitutional concerns. Id. 33 See, e.g., Cabello v. Ferna ´ ndez-Larios, 402 F.3d 1148, 1151-52 (11th Cir. 2005); Doe v. Saravia, 348 F. Supp. 2d 1112, 1158-59 (E.D. Cal. 2004); Tachiona v. Mugabe, 216 F. Supp. 2d 262, 267-69 (S.D.N.Y. 2002); Mehinovic v. Vukovic, 198 F. Supp. 2d 1322, 1358-60 (N.D. Ga. 2002); Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1251-53 (S.D. Fla. 1997); Doe v. Karadzic, Civ. No. 93-0878, 2001 WL 986545 (S.D.N.Y. Aug. 28, 2001). 34 See, e.g., Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952), a trademark case in which the Supreme Court held that “the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.” The Court considered three equitable factors that might justify an extraterritorial injunction: (1) whether the effects of the defendant’s extraterritorial conduct were not confined to the foreign nation where it occurred but could have adverse effects on commerce within the United States, id. at 286; (2) whether the defendant was a U.S. citizen, id. at 285-86; and (3) whether the injunction sought would not interfere with the sovereignty of the nation within whose borders the extraterritorial conduct was to be prohibited, that nation having expressly abrogated any conflicting right in the alleged infringer, id. at 285, 289. See also United States v. First Nat’l City Bank, 379 U.S. 378, 384 (1965) (“Once personal jurisdiction of a party is obtained, the District Court has authority to order it to ‘freeze’ property under its control, whether the property be within or without the United States.”). 35 See, e.g., Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 647 (2d Cir.), cert. denied, 352 U.S. 871, reh’g denied, 352 U.S. 913 (1956) (the power to enjoin a party from committing acts outside court’s territorial jurisdiction “should be exercised with great reluctance when it will be difficult to secure compliance” or where there is potential for “discord and conflict with the authorities of another country.”); Bano v. Union Carbide Corp., 361 F.3d 696, 716-17 (2d Cir. 2004) (same); Jota v. Texaco, Inc., 157 F.3d 153, 162 (2d Cir. 1998) (explaining that where the Ecuadorian government had

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In human rights cases against defendants who are outside of the United States, therefore, injunctive relief is possible but not likely. Not only would an injunction be difficult for a federal court to supervise and enforce, but it might be deemed interference in the internal affairs of a foreign state. Very few human rights cases have sought extraterritorial injunctive relief, and no contested cases have obtained an injunction addressing the conduct of a then-sitting government. Convincing a court to issue an injunction in a human rights lawsuit may turn on the plaintiff’s ability to portray it, under the particular facts of the case, as something more than an empty gesture and something less than a significant interference in the affairs of another state. In Doe v. Unocal Corp., the court denied a motion for preliminary injunction barring the private corporate defendant from making further contributions to the business project responsible for the human rights violations at issue in the case.36 The court held that the injunction would not have provided a remedy to the plaintiffs because the other entities involved in the project could have obtained alternative funding.37 Because the case settled prior to going to trial, the court did not rule on the motion for a permanent injunction. Similar requests for injunctive and declaratory relief are pending in other cases against multinational corporations.38 resisted joinder, those aspects of equitable relief that would require its extensive participation should be dismissed). 36 67 F. Supp. 2d 1140, 1146 (C.D. Cal. 1999). 37 Id. The court found that plaintiffs met two prongs of the test for injunctive relief, injury in fact and causation. Because plaintiffs faced a substantial probability of forced repatriation and evidence suggested that human rights abuses were ongoing in the Tenasserim region, plaintiffs had demonstrated the existence of a credible threat that they would once again be subjected to human rights violations allegedly committed in furtherance of the pipeline project. Id. at 1144. The plaintiffs met the causation requirement based on allegations that defendants were engaged in a joint venture with the Burmese government to build the pipeline and related infrastructure and that the plaintiffs’ claims were fairly traceable to actions for which defendants might be held liable. Id. 38 See, e.g., Complaint, Wiwa v. Royal Dutch Petroleum, Civ. No. 96-8386 (S.D.N.Y.), available at www.ccr-ny.org/humanrightsbook. Injunctive and declaratory relief is also increasingly available in international tribunals. See, e.g., Inter-American Court of Human Rights, Loayza Tamayo Case, Order of the President (June 12, 1996), OEA/ Ser.L/V/III.35, doc. 4 (1997), available at http://www1.umn.edu/humanrts/iachr/Annuals/ app11-96.html (requesting that Peru release petitioner from solitary confinement).

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In Kadic v. Karadzic, at a hearing on damages after a default judgment, a jury awarded injunctive relief as requested by the plaintiffs.39 Radovan Karadzic, the de facto leader of the Bosnian Serbs during the genocidal war in Bosnia Herzegovina, was enjoined from committing or facilitating “any acts of ‘ethnic cleansing’ or genocide, including rape, enforced pregnancy, forced prostitution, torture, wrongful death, extrajudicial killing, or any other act committed in order to harm, destroy or exterminate any person on the basis of ethnicity, religion and/or nationality.”40 At the time the injunction was issued, however, the genocidal war was over, and Karadzic had been removed from power.41 Requests for injunctive relief for conduct occurring outside the United States may trigger the political question and act of state doctrines.42 Any attempt to obtain injunctive relief should be carefully crafted to avoid a ruling that the injunction would constitute an intrusion into the sovereignty of another country or U.S. foreign policy. Where possible, injunctive relief should be aimed at that part of defendants’ actions that are directed to the United States. In Doe v. Liu Qi, the court refused to order injunctive relief in a case filed by practitioners of Falun Gong against an official of the government of China.43 The court concluded that any form of injunction would violate the act of state doctrine, as discussed in Chapter 13. However, the plaintiffs did obtain a declaratory judgment confirming that the government of China had violated the internationally protected rights of the plaintiffs, Falun Gong practitioners.44 A declaratory judgment serves several of the goals of human rights plaintiffs, by creating a record of the abuse and a judicial recognition of the violation of international law. 39 Jury Award, Kadic v. Karadzic, Civ. No. 93-1163 (S.D.N.Y Aug. 9, 2000), available at www.ccr-ny.org/humanrightsbook. 40 Order and Permanent Injunction, at 3, Kadic v. Karadzic, Civ. No. 93-1163 (S.D.N.Y. Aug, 16, 2000), available at www.ccr-ny.org/humanrightsbook. 41 Karadzic has been a fugitive since 1995, when he was indicted by the International Criminal Tribunal for the former Yugoslavia. Prosecutor v. Karadzic and Mladic, Case No. IT-95-5, Indictment (Nov. 14, 1995). 42 See Chapter 13. 43 349 F. Supp. 2d 1258, 1270, 1273 (N.D. Cal. 2004). 44 Id. at 1273. In addition to injunctive relief and a declaratory judgment, plaintiffs sought compensatory and punitive damages; as discussed in Chapter 13, the court held that an award of damages was barred by the act of state doctrine. Id.

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C. OTHER REMEDIES In addition to damages and other forms of court-enforced relief, human rights judgments may have additional punitive impact on defendants. For example, Hector Gramajo, an ex-general and former Minister of Defense of Guatemala, fled the United States after being served with an ATS complaint in 1991.45 He had been grooming himself to run for the presidency of his country and had come to the United States to obtain a degree from the Kennedy School at Harvard. He was served with the lawsuit on his graduation day.46 Gramajo immediately returned to Guatemala, his U.S. visa was revoked, and his political party decided not to choose him as its presidential candidate. His inability to travel to the United States without embarrassment was a liability. Gramajo’s political ambitions were harmed by the lawsuit and the public exposure surrounding it.47 Kelbessa Negewo, held responsible by a federal court in Atlanta for acts of torture during the “Red Terror” in Ethiopia, lost several jobs as a result of the civil judgment and was denaturalized largely based on evidence produced at the civil trial.48 In June 2006, he was ordered deported.49 There have been other cases with non-monetary consequences for the defendants, including an unreported case in 1987 that caused a Chilean torturer to avoid competing in the Pan-American games in Indiana that year for fear of having his horse attached in an ATS action.50 D. ATTORNEYS’ FEES AND COSTS No ATS or TVPA case has resulted in an award of attorneys’ fees. The “American rule” generally presumes that attorneys’ fees will not be awarded. It can be argued that such fees are authorized by the law of the place where the 45 See Sandra Coliver, Bringing Human Rights Abusers to Justice in U.S. Courts: Carrying Forward the Legacy of the Nuremberg Trials, 27 CARDOZO L. REV. 1689, 1696 (2006). 46 Neil A. Lewis, At the Bar; Suing Dictators (and Similar Types) Here for Violations Committed Elsewhere, N.Y. TIMES, Mar. 3, 1995, at B8. 47 Coliver, supra note 45, at 1695. 48 Andrew Rice, The Long Interrogation, N.Y. TIMES MAGAZINE, June 4, 2006, § 6, at 50-57. 49 Id. 50 Hertz v. Arrendondo, Civ. No. 87-870 (S.D. Ind. filed Aug. 12, 1987); Coliver, supra note 45, at 1696. See Chilean in Suit Reportedly Home, N.Y. TIMES, Aug. 18, 1987, at D24.

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abuses occurred,51 or by the federal court’s statutory or inherent powers,52 but no such arguments have been successful to date, and the decision in one human rights case denied plaintiffs’ request for attorneys’ fees.53 E. ENFORCING JUDGMENTS 1.

Introduction

If defendants have assets in the United States, collection is relatively straightforward. Plaintiffs have collected $300,000 from one of the defendants in the Romagoza-Arce case,54 and a large collection is likely in Jean v. Dorelien, a 51

In Xuncax v. Gramajo, 886 F. Supp. 162, 162 (D. Mass. 1995), for example, plaintiffs submitted extensive information about attorneys’ fee awards under Guatemalan law but declined to pursue their claim given the fact that plaintiffs had been unable to collect their damage award. 52

Two arguments support a request for attorneys’ fees, but neither has been successful in a human rights or similar case. (1) The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. Section 1988(b), authorizes awards of reasonable attorneys’ fees to prevailing parties in federal civil rights litigation. The purpose of this authorization is to ensure “effective access to the judicial process” for those seeking vindication of federal rights, Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. REP. No. 94-1558, at 1 (1976)), including rights that extend beyond so-called traditional civil rights such as federal statutory rights. See Maine v. Thiboutot, 448 U.S. 1 (1980); Maher v. Gagne, 448 U.S. 122 (1980). Since the rights at issue in ATS cases are based on a federal common law cause of action, and TVPA cases are based on federal statute, an argument can be made that Section 1988 authorizes attorneys’ fees in ATS and TVPA cases. (2) The district courts arguably have the inherent power to award attorneys’ fees. The Supreme Court in Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991), affirmed that federal courts have ample inherent powers to provide broad relief for a wide range of conduct. See also United States v. Hudson and Goodwin, 11 U.S. 32, 34 (1812). Since a federal court can dismiss a suit outright, see Link v. Wabash R.R. Co., 370 U.S. 626, 63031 (1962), it may also impose the “ ‘less severe sanction’ ” of assessing attorneys’ fees, something “undoubtedly within a court’s inherent power.” Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980)). 53

Doe v. Karadzic, Civ. No. 93-0878, 2001 U.S. Dist. LEXIS 12928 (S.D.N.Y. Aug. 28, 2001). 54

See the Web site of the Center for Justice and Accountability for a discussion of the collection in Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006), available at http:// www.cja.org/cases/romagoza.shtml; Coliver, supra note 45, at 1696-97. The magistrate

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case against a Haitian defendant who won the state lottery while living in Florida.55 Another case resulted in the collection of a little more than $1 million from the estate of Ferdinand Marcos, ex-president of the Philippines, out of a total judgment of over $2 billion.56 Multimillion dollar judgments in the majority of ATS cases against individual defendants have gone uncollected, however, largely because plaintiffs are unable to locate the defendants’ assets or because assets are moved and hidden before a final judgment is issued. In an early ATS case, plaintiffs managed a paltry collection of about $1,000 from Argentine General Suarez-Mason.57 That case demonstrates the multiple problems that make enforcement of judgments difficult. Many defendants either have no assets in the United States or arrange to transfer assets out of the country in the months or years while the litigation is pending. For example, although Suarez-Mason was living in California and had financial resources, he kept his assets out of the United States, arranging to receive a monthly allotment from his foreign bank accounts.58 This section begins with a discussion of the difficulties of attaching or otherwise freezing assets before judgment and then discusses enforcing judgments in the United States and the more difficult task of enforcing a judgment in another country. ordered that almost $120,000 in money fraudulently transferred by the defendants be returned to the plaintiffs. 55 Civ. No. 04-001524 (Fla. Cir. Ct. Sept. 10, 2004) (Order Transferring Money to Court’s Account), available at http://www.cja.org/cases/doreliendocs.shtml. See Coliver, supra note 45, at 1697 n.28 (describing state court proceedings freezing $1 million won in lottery). 56 Coliver, supra note 45, at 1696-97 n.26. Plaintiffs in Abebe-Jiri v. Negewo collected approximately $1,000 from Kelbessa Negewo. Id. at 1696-97. 57 Id. Joint enforcement efforts sought to enforce three judgments against SuarezMason: Forti v. Suarez-Mason, Civ. No. 87-2058 (N.D. Cal. Apr. 20, 1990); Quiros de Rapaport v. Suarez-Mason, Civ. No. 87-2266 (N.D. Cal. Apr. 11, 1989); Martinez-Baca v. Suarez-Mason, Civ. No. 87-2057 (N.D. Cal. April 22, 1988). All three judgments are available at www.ccr-ny.org/humanrightsbook. 58 Plaintiffs’ attorneys deposed Suarez-Mason’s wife, identified the local bank account into which the monthly allotment was deposited and attached the account, seizing $400—all that remained of that month’s allotment.

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Obstacles to Pre-Judgment Attachment

Pre-judgment attachment of defendant’s assets would ensure that funds are available to pay all or part of a judgment. Unfortunately, this may be impossible or very expensive: most states require that plaintiffs post bond before they will take the unusual step of freezing a litigant’s assets pre-judgment, and foreign judicial systems are reluctant to freeze assets while U.S. litigation is pending. Plaintiffs in the Marcos litigation did manage to freeze the assets of Marcos’ estate in Switzerland.59 In that case, however, a U.S. court issued an injunction freezing the assets in response to a request from the Philippine government, which claimed that the monies should be returned to the government. A U.S. court then extended the injunction at the request of the plaintiffs in the U.S. human rights case.60 However, the frozen funds were later transferred to an escrow account in the Philippines, and the Ninth Circuit repeatedly reversed the district court’s efforts to freeze funds in bank accounts in Switzerland, the Philippines, and Singapore.61 This rest of this section offers some guidance on the enforcement of final judgments against assets that have already been located and frozen in place, whether in the United States or abroad. 3.

Enforcing Judgments in the United States

Within the United States, judgments of the courts of other states are guaranteed recognition through the Full Faith and Credit Clause of Article IV, 59

Plaintiffs have been trying to collect a judgment of nearly $2 billion from the Marcos estate. Early on, plaintiffs successfully seized a car and a house in Hawai’i worth a little over one million dollars. In re Estate of Marcos, 88 Haw. 148, 152 (1998). 60 See discussion in Beth Van Schaack, Unfulfilled Promise: The Human Rights Class Action, 2003 U. CHI. LEGAL. F. 279, 284-89 (2003). Pursuant to a 1999 agreement with the human rights plaintiffs, the estate attempted to secure the release of $150 million to settle the human rights claims, but a Philippine court denied a request to release funds from the escrow account. As a result of the parties’ inability to secure the funding, the district court terminated the settlement agreement in 2001. See Hilao v. Estate of Ferdinand Marcos, 393 F.3d 987, 989-90 (9th Cir. 2004), for a description of the tentative settlement and the unsuccessful efforts to obtain funds to satisfy it from the frozen funds. 61 Id. at 990-91. The district court reinstated the settlement agreement in 2003, in an effort to block transfer of the Estate’s funds to the government of the Philippines from an account in the Philippines, id. at 991, but the effort to freeze the transfer was later rejected by the Ninth Circuit. In re Philippine Nat’l Bank, 397 F.3d 768, 770-72 (9th Cir. 2005).

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Section 1 of the Constitution.62 The procedure for enforcing federal sister state judgments is dictated by 28 U.S.C. Section 1963. Money or property judgments rendered in a federal district court must first be registered in another district by filing a certified copy of the judgment with the district court in that state. Registered judgments “have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”63 The judgment generally must be final and no longer subject to appeal, although it can be registered before all appeals are exhausted “when ordered by the court that entered the judgment for good cause shown.”64 The judgment can only be enforced to the amount enforceable in the rendering state.65 Federal Rule of Civil Procedure 69 guides the execution of judgments generally. Enforcement of money judgments is achieved through a writ of execution and in accordance with the practice and procedure of the enforcing state, except that any federal statute governs to the extent that it is applicable. A winning plaintiff may obtain discovery from any person, including the judgment debtor, in seeking execution of the judgment.66 In a continued effort to collect the Marcos judgment, some of the plaintiffs filed suit in Texas, seeking to enforce the final judgment with respect to real property that the plaintiffs claimed was beneficially owned by the Marcos estate.67 4.

Enforcing Judgments in a Foreign Country

Efforts to enforce judgments in other countries face a series of difficulties: Assets must be located and frozen in place while legal attachment proceedings are initiated, and the foreign judicial system must be convinced to enforce the U.S. judgment. Still, efforts to enforce a U.S. human rights judgment in a foreign country are important. Any collection, even if only partial, is likely to be significant to the plaintiffs. In addition, the very process of seeking to enforce a 62

See 28 U.S.C. § 1738. 28 U.S.C. § 1963. 64 Id. 65 See Restatement (Second) of Conflict of Laws Sections 99-102 for a discussion of enforcement of sister state judgments. 66 FED. R. CIV. P. 69. 67 See Merrill Lynch, Pierce, Fenner and Smith, Inc. v. ENC Corp., 448 F.3d 1072 (9th Cir. 2006) (seeking to collect Marcos assets on behalf of the human rights plaintiffs); Complaint, Pimentel v. B.N. Dev. Co., Inc., No. 05-234 (N.D. Tex. filed April 2005) (seeking to seize real property beneficially owned by the Marcos estate). 63

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judgment is a means of holding the defendant accountable and is likely to serve as a deterrent to other potential human rights violators. Unsuccessful enforcement efforts should not be abandoned: as the world economy becomes more interconnected, greater cooperation among judicial systems may facilitate enforcement. Further, if a government unsympathetic to a defendant takes control, the foreign government may help collect a previously unenforceable judgment. After the overthrow of former Paraguayan dictator Stroessner and the slow return of democracy in Paraguay, the Fila´rtiga family continued efforts to enforce the Fila´rtiga v. Pen˜a-Irala judgment, which awarded them $10.4 million. The family filed a claim to extend the time to enforce the 20-year judgment, providing notice to defendant Americo Pen˜a-Irala through the courts of Paraguay, where he now resides. This time-consuming process involved serving the defendant through letters rogatory and securing the approval of the U.S. Attorney General, the U.S. Secretary of State, and the Paraguayan Embassy.68 No multilateral treaty governs the enforcement of foreign judgments worldwide.69 Although several regional treaties70 regulate the enforcement of 68 Fila ´ rtiga v. Pen˜a-Irala, Civ. No. 04-444 (E.D.N.Y. filed Feb. 2004), available at www.ccr-ny.org/humanrightsbook. The ongoing collection struggle in the Marcos litigation includes pending efforts to seize money belonging to the Philippine government in Singapore. Estrella Torres, Singapore Court Rebuffs RP Government, BUSINESS MIRROR, available at http:// www.businessmirror.com.ph/1229&302006/top stories01.html. 69

For an overview of the various international courts and tribunals and an evaluation of their enforcement capabilities, see REDRESS, CONFERENCE ON ENFORCEMENT OF AWARDS FOR VICTIMS OF TORTURE AND OTHER INTERNATIONAL CRIMES: BACKGROUND PAPER (June 2005), available at http://www.redress.org/conferences/discussion paper enforcement.pdf. The background paper also considers and compares strategies for the enforcement of domestic and collateral judgments. Bilateral treaties may also provide for the enforcement of U.S. judgments. Id. 70 The Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968) regulates judgment enforcement among the members of the European Economic Community. Available at http://www.jus.uio.no/lm/ec. jurisdiction.enforcement.judgements.civil.commercial.matters.convention.brussels.1968/ doc.html. The Bustamante Code (Codigo Bustamante) directs judgment recognition between Central American states. ROBERT C. CASAD, CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE-STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY 35-43 (1981);

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foreign judgments between member countries, the United States is not a party to most of these treaties. Regardless, most countries have adopted rules instructing their courts as to how to treat foreign judgments. Enforcement efforts can begin with a survey of general rules applied by courts of the region for an indication of how foreign judgments are received. Several books that focus on the reception of foreign judgments, country by country, are useful starting points.71 The next source is the civil procedure code of a specific target country, which, like the U.S. Federal Rules of Civil Procedure, will lay out the country’s particular criteria and procedures for enforcement.72 Because practices vary from region to region and country to country, detailed research into the particular country at issue is, of course, essential.73 However, most domestic courts apply common general criteria to determine what level of recognition should be given to a foreign judgment, which are summarized in what follows. Jurisdiction is an essential element in judgment recognition. The enforcing court will evaluate whether the rendering U.S. court had jurisdiction to adjudicate the case. In some countries, jurisdiction will be based on U.S. law, but others will apply the jurisdictional rules of the enforcing state. Some legal systems require some enduring connection between the subject of the action and the country issuing the judgment. Reciprocity: Execution may turn on whether the state in which the judgment was rendered would grant recognition to a judgment of the enforcing state under reciprocal circumstances. Latin American courts still conform widely to the reciprocity rule.74 Reciprocity should not be an obstacle in human rights cases, see also ENFORCING FOREIGN JUDGMENTS IN THE UNITED STATES AND UNITED STATES JUDGMENTS ABROAD 137 (Ronald A. Brand ed., 1992). 71 See Casad, supra note 70; ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE (Charles Platto ed., 2d ed. 1993); INTERNATIONAL COOPERATION IN CIVIL AND COMMERCIAL PROCEDURE (Ludwik Kos-Rabcewicz-Zubkowski ed., 1975); DAVID MCCLEAN, INTERNATIONAL JUDICIAL ASSISTANCE (1992). 72 Helpful comparative law “encyclopedias” include INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW (Konrad Zweigert & U. Drobnig eds., 1981); MODERN LEGAL SYSTEMS CYCLOPEDIA (Kenneth R. Redden ed., 1984). 73 REDRESS, supra note 69, at 3-13. 74 GEORGE G. ROMAN, RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN VARIOUS FOREIGN COUNTRIES 21 (1984).

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since the United States is generally liberal in its own recognition of the judgments of other countries.75 Due process requires proper, timely service of process on the defendant and an opportunity to present a defense. Public policy: The court of an enforcing state may refuse execution if it deems that enforcement would violate public policy. Grounds for denying enforcement on public policy grounds vary from country to country, including procedural and evidentiary matters as well as substantive issues.76 Plaintiffs’ attorneys should point to the importance of enforcing human rights judgments and obtaining redress for victims of human rights abuses. Finality: Foreign judgments generally must be final and not subject to appeal. In some countries, however, the judgment is considered final and enforceable even if it is subject to appeal or an actual appeal is pending. Default judgments: Some countries will automatically reject enforcement of default judgments. Impartiality: The rendering U.S. court, as well as the system of laws, must be held to be impartial, and the proceedings must be untainted by collusion or fraud. Translated copy: All countries require that the foreign judgment and all supporting documentation be translated into their native language by a sworn translator. Immunity: State immunity may present a problem in cases filed against government officials, although most state immunity doctrines do not cover the private acts of a government official. Foreign judgments will generally be reexamined by the local court only to the extent necessary to determine whether formal requirements have been met, not to reexamine the merits. In some countries, if there is a question about one of the criteria, such as whether the judgment violates public policy, a court has the ability to reexamine the foreign judgment to that extent. 75

ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE, supra note 71, at 259. Look to the individual country’s public policy section in ENFORCEMENT OF FOREIGN JUDGMENTS WORLDWIDE, supra note 71, for foreign cases illustrating refusal of enforcement on public policy grounds. 76

Part VII HISTORICAL JUSTICE CLAIMS

The final chapter of the book addresses a particular subset of human rights claims, those involving claims of egregious historical injustices that were not resolved at the time that they occurred. Most such cases arise out of World War II. Historical justice claims trigger difficult issues of standing and the statute of limitations, as well as immunity and foreign affairs defenses that are similar to those discussed in prior chapters. Although most historical justice cases have been dismissed, several have triggered negotiations that have led to significant settlement agreements.

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CHAPTER 22 HISTORICAL JUSTICE CLAIMS

While most human rights cases arise from contemporary human rights violations, in the last decade, the ATS and other legal theories have also been employed to seek compensation for human rights violations dating from World War II and earlier. Very few of these cases have led to judgments for the plaintiffs. Several, however, have triggered successful settlement negotiations. Holocaust cases have been the most prominent of this genre of ATS litigation,1 beginning in 1996 with three class action lawsuits filed against Swiss banks, claiming that the banks had failed to account for the deposits of Jewish customers killed in the Holocaust.2 The banks settled the suits in August 1998 for $1.25 billion. This lawsuit was followed by actions by World War II slave laborers, which were settled for more than $5 billion.3 In subsequent years, victims and their descendants have filed additional claims arising out of the Holocaust and other World War II atrocities, the Armenian genocide, and U.S. slavery, among others. This chapter offers a brief introduction to the unique obstacles presented by historical justice claims. First, plaintiffs must show standing to sue, if they sue on behalf of their deceased ancestors. Second, the statute of limitations will generally bar claims unless plaintiffs can justify application of the equitable tolling doctrine. Third, the fact that most of the historical justice claims involve actions of the U.S. and foreign governments triggers several complicated defenses. Claims against foreign governments must overcome foreign sovereign immunity. In addition, the U.S. government often intervenes successfully to argue that the political question doctrine renders the case non-justiciable because 1 For a detailed account of the Holocaust litigation, see MICHAEL BAZYLER, HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION IN AMERICA’S COURTS (2005). 2 In re Holocaust Victim Assets Litigation, 2001 U.S. App. LEXIS 30154 (2d Cir. 2001). 3 See generally STUART E. EIZENSTAT, IMPERFECT JUSTICE, LOOTED ASSETS, SLAVE LABOR, AND THE UNFINISHED BUSINESS OF WORLD WAR II (2003).

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litigation would interfere with a recent or historic diplomatic agreement or would undermine U.S. foreign policy.4 Despite these difficulties, some of the historical justice cases have been remarkably successful. The demand for justice in many of these cases resonates with the public, offering the possibility of favorable settlement agreements for the victims of past atrocities and their heirs. A. STANDING TO SUE Cases filed by the descendants of victims may face questions about the plaintiffs’ standing to sue. For example, in In re African American Slave Descendants Litigation, descendants of slaves sought reparations from banks, insurance companies, and other corporations that profited from the institution of slavery.5 Plaintiffs alleged that defendants made loans to slave traders, issued insurance policies for slave owners against the loss of their African slaves, and collected custom duties from slave ships. The district court dismissed the claims for lack of standing, holding that the descendants had failed to allege that they had personally suffered an injury as a result of the defendants’ illegal conduct and that they could not assert the rights of their ancestors. On appeal, the circuit court affirmed this reasoning in large part, but held that those plaintiffs suing in the representative capacity of their ancestors’ estates, as opposed to suing on their ancestors’ behalf, would have standing to sue.6 B. STATUTE OF LIMITATIONS Historical justice claims inevitably face statute of limitations questions. Because the statute has long since run in almost all of these cases, plaintiffs have to rely on doctrines that extend the statute of limitations, such as the discovery rule or the continuing violation doctrine. Under the discovery rule, the statute of 4 Attorneys bringing historical justice cases need to pay particular attention to the framing of their claims for relief. For instance, a claim for reparations, rather than for a tort, will likely be dismissed. 5 These cases were consolidated in In re African-American Slave Descendants Litigation, 375 F. Supp. 2d 721 (N.D. Ill. 2005). 6 In re African-Am. Slave Descendants Litig., 2006 U.S. App. LEXIS 30525, * 22 (7th Cir. 2006). The court went on to state that “suits complaining about injuries that occurred more than a century and a half ago have been barred for a long time by the applicable statute of limitations.” Id. at * 22-23.

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limitations does not begin to run until after the plaintiff discovers the injury.7 The court in In re African-American Slave Descendants Litigation emphasized that it was discovery of the predicate injury, not discovery of all of the damages that flowed from that injury, which caused the accrual of plaintiffs’ claims.8 The “continuing violation doctrine” applies when a series of events gives rise to a cumulative injury.9 Plaintiffs in In re African-American Slave Descendants Litigation also attempted to argue that this doctrine applied because the defendants had failed to provide a proper accounting of the profits gained through commercial activity relating to slavery.10 The court disagreed, finding that the injury at issue was denial of payment for forced labor and that all of the other consequences were a result of this injury and not a continuing claim.11 Given the fact settings in which historical justice cases arise, many plaintiffs will be able to raise equitable tolling arguments. Equitable tolling permits a statute to be tolled when circumstances occurring outside of plaintiffs’ control prevent them from bringing the claim during the limitation period.12 At least in the historical context, the argument that a plaintiff was not aware of the opportunity to bring human rights claims in the United States has been found insufficient to toll the statute.13 Equitable estoppel permits a plaintiff to bring a claim after the statute of limitations has expired when the defendant’s improper conduct prevents the plaintiff from bringing suit on time.14 In In re African-American Slave 7

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). In re African-Am. Slave Descendants Litig., 375 F. Supp. 2d 721, 775-76 (N.D. Ill. 2005). 9 Id. at 776. 10 Id. 11 Id. at 776-77 (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (“A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”)). 12 Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996). 13 In re World War II Era Japanese Labor Litig., 164 F. Supp. 2d 1160, 1181-82 (N.D. Cal. 2001). Also unsuccessful have been attempts to argue that accrual for Torture Victim Protection Act (TVPA) claims should begin on the date the TVPA became effective. See Deutsch v. Turner Corp., 317 F.3d 1005, 1027-29 (9th Cir. 2003) (finding that “the TVPA is applicable to acts that took place prior to the effective date of the Act”). 14 In re African-Am. Slave Descendants Litig., 375 F. Supp. 2d 721, 777 (N.D. Ill. 2005). 8

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Descendants Litigation, the court stated that plaintiffs were required to prove that the defendants’ actions concealed information that would have enabled the plaintiffs’ ancestors to bring claims, not merely that the defendant corporations had misled the plaintiffs by refusing to divulge information about their ties to slavery.15 While particular claims may fit neatly into a statute that prolongs the statute of limitations for certain harms,16 attorneys should bear in mind the above doctrines when drafting their complaint and should consider the different ways in which the alleged historical injury can be categorized as relating to a recent or ongoing injury. The statute of limitations is likely to be the most important obstacle to the success of these cases. C. SOVEREIGN IMMUNITY, THE POLITICAL QUESTION DOCTRINE, AND RELATED DEFENSES Because many of the historical justice cases involve the U.S. and foreign governments, plaintiffs often face sovereign immunity claims or defenses related to the political question doctrine and foreign affairs powers of the U.S. executive branch. Claims against foreign states can proceed only if they fall within one of the exceptions to immunity provided by the Foreign Sovereign Immunities Act (FSIA),17 discussed in detail in Chapter 5. In Altmann v. Republic of Austria, the Supreme Court held that the FSIA applies to events that took place before it was enacted.18 In that case, however, the plaintiff was able to show that her case fell within the FSIA exception that denies a foreign state immunity for claims involving “rights in property taken in violation of international law.”19 Claims 15

Id. at 778-79. See Cal. Civ. Proc. Code Section 354.5, which permits California residents to bring claims for the payment of Holocaust-era insurance policies through December 31, 2010. 16

17

28 U.S.C. §§ 1330, 1602-11. See Chapter 5. 541 U.S. 677, 701 (2004). 19 28 U.S.C. § 1605(a)(3). Altmann’s paintings were among approximately 600,000 works of art seized by the Nazis from both museums and private collections throughout Europe. After Altmann defeated another effort to dismiss the case in the trial court, she and the Austrian government agreed to submit the claim to arbitration; in January 2006, the government was ordered to return the artwork to Altmann and her relatives. See Austria will let Klimt paintings go, available at http://www.cbc.ca/arts/story/2006/01/17/ klimt-paintings.html#skip300x250. See also Chabad v. Russian Fed’n, 2006 U.S. Dist. LEXIS 87148 (D.D.C. 2006) (permitting the plaintiffs to proceed against the Russian Federation and several Russian state agencies under the expropriation exception of the 18

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that do not fall within FSIA exceptions, however, will be dismissed. In Princz v. Federal Republic of Germany, for example, the court dismissed a claim arising out of the Holocaust, rejecting the argument that claims for violations of fundamental international law norms fall within an implied FSIA exception.20 Other Holocaust-era claims have foundered on the doctrine of international comity, pursuant to which a court declines to exercise jurisdiction to avoid a conflict with the laws or legal system of another nation.21 In Ungaro-Benages v. Dresdner Bank AG, for example, the plaintiff sued German banks that had allegedly stolen her family’s interest in a manufacturing company prior to the war.22 The court dismissed on international comity grounds, holding that the claim should be resolved by a procedure established to resolve similar claims pursuant to an executive agreement between Germany and the United States. Courts will not dismiss cases on international comity grounds where there is no true conflict between the court and the alternate forum. For instance, despite the fact that the French government had formed an independent commission to “study the conditions in which goods may have been illicitly acquired . . . and to publish proposals” regarding redress of Holocaust-era atrocities in France,23 the court declined to dismiss plaintiffs’ claims against the French banks on international comity grounds. The court found that the commission did not constitute a conflicting judicial, legislative, or executive act to which the court could defer.24 The political question doctrine is also frequently at issue in historical justice cases,25 often because the cases arise in a context where the executive branch has taken action that might be viewed as inconsistent with the litigation of the same or similar issues in the federal courts. This was true in Alperin v. Vatican Bank, where plaintiffs claimed that the Vatican Bank processed profits from slave labor and looted assets to assist the Nazi-backed Ustasha Regime in Croatia to evade justice for war crimes, genocide, and crimes against humaniFSIA for the taking of a historical collection of Jewish records and manuscripts in violation of international law). 20 26 F.3d 1166, 1173-74 (D.C. Cir. 1994). 21 See Chapter 13, Section C. 22 379 F.3d 1227 (11th Cir. 2004). 23 Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 123 (E.D.N.Y. 2000). 24 Id. at 129-30 25 See Chapter 13, Section A.

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ty.26 In considering the defendant’s motion to dismiss, the Ninth Circuit concluded that “[c]ondemning—for its wartime actions—a foreign government with which the United States was at war would require [the court] to ‘review[] an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been “constitutionally commit[ted].”’”27 As a result, the district court dismissed the international human rights claims on political question grounds; the court did permit property claims to go forward, finding that they would not require the court to pass judgment on wartime conduct and were unaffected by any treaty or executive agreement.28 Plaintiffs may also find their ATS claims directly precluded by post-war treaties or agreements. In Joo v. Japan, for example, plaintiffs’ claims against the Japanese army for sexual slavery were dismissed because the issues presented non-justiciable political questions.29 There, the court relied on the 1951 Treaty of Peace between Japan and the Allied Powers, concluding that the Allied Powers intended that all war-related claims against Japan be resolved through negotiations rather than through private tort suits. Some of these hurdles may be avoided with a carefully drafted complaint. For instance, in In re African American Slave Descendants Litigation, the court noted that the plaintiffs had been “careful to cast the litigation as a quest for conventional legal relief” in that “[a]ll they were asking the federal judiciary to do is apply state law.”30 Had plaintiffs framed the case as one about “reparations for the wrong of slavery,” plaintiffs likely would have encountered political question obstacles.31 D. STATE LAW CLAIMS Plaintiffs have had mixed results in using state laws to address historical violations of human rights, particularly with respect to U.S. insurance companies that refused to pay the heirs of policyholders who had perished in state-sponsored genocides. Some plaintiffs have been highly successful. For instance, heirs of victims who perished in the Armenian genocide filed a class action against New York Life Insurance Company in 2001 for failure to pay out 26

410 F.3d 532 (9th Cir. 2005). Id. at 561 (quoting Goldwater v. Carter, 444 U.S. 996, 1006 (1979) (Brennan, J., dissenting) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962))). 28 Id. at 538-39. 29 413 F.3d 45 (D.C. Cir. 2005). 30 2006 U.S. App. LEXIS 30525 at *12 (7th Cir. 2006). 31 Id. at *11-12. See Section D for discussion of state claims in this case. 27

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on valid life insurance policies purchased while Armenia was still under Ottoman rule.32 New York Life argued that the claims should be dismissed, pointing to a clause that required disputes to be settled in French or English courts; the California legislature then enacted a statute permitting California courts to hear cases based on Armenian genocide life insurance policies. This development led to a $20 million dollar settlement. State law claims may also be based on fraud or misrepresentation arising out of the violations of international law. For instance, plaintiffs in In re African-American Slave Descendants Litigation were permitted to proceed on their fraud and consumer protection claims, after alleging that plaintiffs purchased products or services from the defendants that they would not have bought if the defendants had not concealed their involvement in slavery.33 Not all plaintiffs, however, have been as successful in bringing historical justice claims in state courts. Several states, including California, passed statutes requiring European insurance companies operating in their states to disclose the names of their pre-war policyholders, for the purposes of informing potential claimants that they might have a right to payment under pre-war policies. In American Insurance Association v. Garamendi, the first Holocaust restitution case to be decided by the Supreme Court, the Court held that the California statute was an unconstitutional infringement on the federal government’s exclusive power to conduct foreign affairs.34 Following negotiations among European insurance companies, representatives of international Jewish and survivor organizations, and the State of Israel, the United States endorsed an international commission as the exclusive forum for adjudicating insurance claims from the Holocaust era. The Court held that the commission would be undermined by permitting lawsuits to be filed in state court.35 * * * * * The large settlements in a handful of the Holocaust cases were the result of a unique confluence of political, legal, and moral factors. The strong support provided by the Clinton administration and the realization that the generation of 32

Marootian v. N.Y. Life Ins. Co., 2001 U.S. Dist. LEXIS 22274 (C.D. Cal. 2001). 2006 U.S. App. LEXIS 30525 at * 24 (7th Cir. 2006). 34 538 U.S. 904 (2003). See discussion of the foreign affairs doctrine in Chapter 13, Section E. 35 See also Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003) (holding that state law creating cause of action for claims involving World War II slave labor intruded on federal government’s exclusive power to make war, which included developing procedures for resolving war claims). 33

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survivors of the Holocaust would soon be gone allowed the U.S. litigation to become the forum in which some measure of justice could be attained. However, most efforts to extend these principles to other instances of historical injustice have been unsuccessful. The central goal of the human rights litigation strategies addressed in this book is to ensure that there will be a forum for redressing human rights violations long before they mature into historical injustices. This book offers guidance for litigation in U.S. courts on behalf of victims and survivors of human rights abuses, at a time when many lawyers and human rights activists are working diligently to develop comparable mechanisms in domestic and international tribunals around the world. If the international community can find the political will to deter human rights abuses before they occur, hold accountable those who perpetrate abuses, and offer redress to the victims and survivors, there will be less work for future generations of human rights lawyers—and less need for a book like this one.

STATUTORY APPENDIX

A. ALIEN TORT STATUTE (ATS), 28 U.S.C. SECTION 1350 The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

551

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B. TORTURE VICTIM PROTECTION ACT (TVPA), 28 U.S.C. SECTION 1350 (NOTE) Section 1. Short title. This Act may be cited as the “Torture Victim Protection Act of 1991”. Sec. 2. Establishment of civil action. (a) Liability.—An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. (b) Exhaustion of remedies.—A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred. (c) Statute of limitations.—No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose. Sec. 3. Definitions. (a) Extrajudicial killing.—For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation. (b) Torture.—For the purposes of this Act— (1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or

Statutory Appendix 553

application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

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C. FOREIGN SOVEREIGN IMMUNITIES ACT (FSIA), 28 U.S.C. SECTIONS 1330, 1602-1605 § 1330. Actions against foreign states (a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement. (b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title. (c) For purposes of subsection (b), an appearance by a foreign state does not confer personal jurisdiction with respect to any claim for relief not arising out of any transaction or occurrence enumerated in sections 1605-1607 of this title. § 1602. Findings and declaration of purpose The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter. § 1603. Definitions For purposes of this chapter— (a) A “foreign state”, except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An “agency or instrumentality of a foreign state” means any entity— (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

Statutory Appendix 555

(c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. (d) A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. (e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by such state and having substantial contact with the United States. § 1604. Immunity of a foreign state from jurisdiction Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. § 1605. General exceptions to the jurisdictional immunity of a foreign state (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of

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that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to— (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable; or (7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph— (A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred, unless later so designated as a result of such act or the act is related to Case Number 1:00CV03110(EGS)[*] in the United States District Court for the District of Columbia; and (B) even if the foreign state is or was so designated, if— (i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United

Statutory Appendix 557

States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred. [§1605(b)-(d) (maritime liens) omitted] (e) For purposes of paragraph (7) of subsection (a)— (1) the terms “torture” and “extrajudicial killing” have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991; (2) the term “hostage taking” has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages; and (3) the term “aircraft sabotage” has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. (f) No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period.

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D. ANTI-TERRORISM ACT (ATA), 18 U.S.C. SECTIONS 2333-2338 18 U.S.C. § 2333. Civil remedies (a) Action and jurisdiction.—Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. (b) Estoppel under United States law.—A final judgment or decree rendered in favor of the United States in any criminal proceeding under section 1116, 1201, 1203, or 2332 of this title or section 46314, 46502, 46505, or 46506 of title 49 shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding under this section. (c) Estoppel under foreign law.—A final judgment or decree rendered in favor of any foreign state in any criminal proceeding shall, to the extent that such judgment or decree may be accorded full faith and credit under the law of the United States, estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding under this section. 18 U.S.C. § 2334. Jurisdiction and venue (a) General venue.—Any civil action under section 2333 of this title against any person may be instituted in the district court of the United States for any district where any plaintiff resides or where any defendant resides or is served, or has an agent. Process in such a civil action may be served in any district where the defendant resides, is found, or has an agent. (b) Special maritime or territorial jurisdiction.—If the actions giving rise to the claim occurred within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of this title, then any civil action under section 2333 of this title against any person may be instituted in the district court of the United States for any district in which any plaintiff resides or the defendant resides, is served, or has an agent. (c) Service on witnesses.—A witness in a civil action brought under section 2333 of this title may be served in any other district where the defendant resides, is found, or has an agent. (d) Convenience of the forum.—The district court shall not dismiss any action brought under section 2333 of this title on the grounds of the inconvenience or inappropriateness of the forum chosen, unless— (1) the action may be maintained in a foreign court that has jurisdiction over the subject matter and over all the defendants; (2) that foreign court is significantly more convenient and appropriate; and

Statutory Appendix 559

(3) that foreign court offers a remedy which is substantially the same as the one available in the courts of the United States. 18 U.S.C. § 2335. Limitation of actions (a) In general.—Subject to subsection (b), a suit for recovery of damages under section 2333 of this title shall not be maintained unless commenced within 4 years after the date the cause of action accrued. (b) Calculation of period.—The time of the absence of the defendant from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, or of any concealment of the defendant’s whereabouts, shall not be included in the 4-year period set forth in subsection (a). 18 U.S.C. § 2336. Other limitations (a) Acts of war.—No action shall be maintained under section 2333 of this title for injury or loss by reason of an act of war. (b) Limitation on discovery.—If a party to an action under section 2333 seeks to discover the investigative files of the Department of Justice, the Assistant Attorney General, Deputy Attorney General, or Attorney General may object on the ground that compliance will interfere with a criminal investigation or prosecution of the incident, or a national security operation related to the incident, which is the subject of the civil litigation. The court shall evaluate any such objections in camera and shall stay the discovery if the court finds that granting the discovery request will substantially interfere with a criminal investigation or prosecution of the incident or a national security operation related to the incident. The court shall consider the likelihood of criminal prosecution by the Government and other factors it deems to be appropriate. A stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. If the court grants a stay of discovery under this subsection, it may stay the action in the interests of justice. (c) Stay of action for civil remedies.— (1) The Attorney General may intervene in any civil action brought under section 2333 for the purpose of seeking a stay of the civil action. A stay shall be granted if the court finds that the continuation of the civil action will substantially interfere with a criminal prosecution which involves the same subject matter and in which an indictment has been returned, or interfere with national security operations related to the terrorist incident that is the subject of the civil action. A stay may be granted for up to 6 months. The Attorney General may petition the court for an extension of the stay for additional 6-month periods until the criminal prosecution is completed or dismissed.

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(2) In a proceeding under this subsection, the Attorney General may request that any order issued by the court for release to the parties and the public omit any reference to the basis on which the stay was sought. 18 U.S.C. § 2337. Suits against Government officials No action shall be maintained under section 2333 of this title against— (1) the United States, an agency of the United States, or an officer or employee of the United States or any agency thereof acting within his or her official capacity or under color of legal authority; or (2) a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority. 18 U.S.C. § 2338. Exclusive Federal jurisdiction The district courts of the United States shall have exclusive jurisdiction over an action brought under this chapter.

Statutory Appendix 561

E. TORTURE VICTIM PROTECTION ACT (TVPA) LEGISLATIVE HISTORY 1.

House Report No. 102-367(I)*

November 25, 1991 [To accompany H.R. 2092 which on July 29, 1991, was referred jointly to the Committee on Foreign Affairs and the Committee on the Judiciary] The Committee on the Judiciary, to whom was referred the bill (H.R. 2092) to carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing, having considered the same, report favorably thereon with an amendment and recommend that the bill, as amended, do pass. The amendment is as follows: Strike out all after the enacting clause and insert in lieu thereof the following: SECTION 1. SHORT TITLE. This Act may be cited as the “Torture Victim Protection Act of 1991”. SEC. 2. ESTABLISHMENT OF CIVIL ACTION. (a) Liability.—An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. (b) Exhaustion of Remedies.—A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred. (c) Statute of Limitations.—No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose. SEC. 3. DEFINITIONS. (a) Extrajudicial Killing.—For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a previous judgment * H.R. REP. 102-367 (1991), reprinted in 1992 U.S.C.C.A.N. 84.

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pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation. (b) Torture.—For the purposes of this Act— (1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the sense or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. EXPLANATION OF AMENDMENT Inasmuch as H.R. 2092 was ordered reported with a single amendment in the nature of a substitute, the contents of this report constitute an explanation of that amendment. SUMMARY AND PURPOSE The purpose of H.R. 2092 is to provide a Federal cause of action against any individual who, under actual or apparent authority, or color of law, of any foreign nation, subjects any individual to torture or extrajudicial killing. HEARINGS No hearings were held on H.R. 2092 during the 102d Congress. Predecessor legislation, H.R. 1417, was the subject of hearings before the Foreign Affairs Subcommittee on Human Rights on March 23, 1988, and April 20, 1988.

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COMMITTEE VOTE On November 19, 1991, a reporting quorum being present, the Committee on the Judiciary ordered H.R. 2092 favorably reported to the House by voice vote with a single amendment in the nature of a substitute. DISCUSSION I. Background Official torture and summary execution violate standards accepted by virtually every nation. The universal consensus condemning these practices has assumed the status of customary international law. As the Second Circuit Court of Appeals held in 1980, “official torture is now prohibited by the law of nations.” Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980). The prohibition against summary executions has acquired a similar status. These universal principles provide scant comfort, however, to the many thousands of victims of torture and summary executions around the world. Despite universal condemnation of these abuses, many of the world’s governments still engage in or tolerate torture of their citizens, and state authorities have killed hundreds of thousands of people in recent years. (See “Amnesty International, Political Killings by Governments 5” (1983).) Too often, international standards forbidding torture and summary executions are honored in the breach. For this reason, recent international initiatives seeking to address these human rights violations have placed special emphasis on enforcement measures. A notable example is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted, with strong support from the U.S. Government, by the U.N. General Assembly on December 10, 1984. The Convention was signed by the United States on April 18, 1988 and ratified by the U.S. Senate on October 27, 1990. Essentially enforcement-oriented, this Convention obligates state parties to adopt measures to ensure that torturers are held legally accountable for their acts. One such obligation is to provide means of civil redress to victims of torture. Judicial protections against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent. A state that practices torture and summary execution is not one that adheres to the rule of law. The general collapse of democratic institutions characteristic of countries scourged by massive violations of fundamental rights rarely leaves the judiciary intact. The Torture Victim Protection Act [TVPA], H.R. 2092, would respond to this situation.

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II. Need for legislation The TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed “in violation of the law of nations.” (28 U.S.C. sec. 1350). Section 1350 has other important uses and should not be replaced. There should also, however, be a clear and specific remedy, not limited to aliens, for torture and extrajudicial killing. In the case of Filartiga v. Pena-Irala, the Second Circuit Court of Appeals recognized a right of action against foreign torturers under the rarely invoked Alien Tort Claims Act. Citizens of Paraguay brought suit in Federal court against a former inspector general of police, who had tortured to death a family member of the plaintiffs, and who was present in the United States. The district court dismissed the complaint for lack of jurisdiction, construing the phrase “law of nations” narrowly; the Court of Appeals reversed. The appellate court unanimously acknowledged that although torture of one’s own citizens was not recognized as a violation of the law of nations in 1789, when the Alien Tort Claims Act was enacted, the universal prohibition of torture had ripened into a rule of customary international law, thereby bringing torture squarely within the language of the statute. (See Filartiga, 630 F.2d at 844-85). The Filartiga case met with general approval. At least one Federal judge, however, questioned whether section 1350 can be used by victims of torture committed in foreign nations absent an explicit grant of a cause of action. In Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied 470 U.S. 103 (1985), a case involving terrorist activities of the Palestine Liberation Organization, Judge Bork questioned the existence of a private right of action under the Alien Tort Claims Act, reasoning that separation of powers principles required an explicit-and preferably contemporary-grant by Congress of a private right of action before U.S. courts could consider cases likely to impact on U.S. foreign relations. The TVPA would provide such a grant, and would also enhance the remedy already available under section 1350 in an important respect: While the Alien Tort Claims Act provides a remedy to aliens only, the TVPA would extend a civil remedy also to U.S. citizens who may have been tortured abroad. Official torture and summary executions merit special attention in a statute expressly addressed to those practices. At the same time, claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered by section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.

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III. Summary of H.R. 2092, as amended The legislation authorizes the Federal courts to hear cases brought by or on behalf of a victim of any individual who, under actual or apparent authority, or color of law, of any foreign nation, subjects a person to torture or extrajudicial killing. It defines “torture” and “extrajudicial killing” in accordance with international standards. The bill would apply only to those acts undertaken under color of official authority. Only “individuals,” not foreign states, can be sued under the bill. Striking a balance between the desirability of providing redress for a victim and the fear of imposing additional burdens on U.S. courts, the bill recognizes as a defense the existence of adequate remedies in the country where the violation allegedly occurred. In cases of extrajudicial killing, because the victim will not be alive to bring suit, the victims “legal representative” and “any person who may be a claimant in an action for wrongful death” may bring suit. Courts may look to state law for guidance as to which parties would be proper wrongful death claimants. The definition of “torture” in the legislation is limited to acts by which severe pain or suffering, whether physical or mental, is intentionally inflicted for such purposes as obtaining a confession, punishment, or coercion. This language tracks the definition of “torture” adopted in the Torture Convention and the understandings included in the Senate’s ratification of the Convention. Like the definition included in the Torture Convention, this one also specifically excludes “pain and suffering arising only from or inherent in, or incidental to, lawful sanctions.” Thus, the act would not permit suits based on the pain inherent in lawfully imposed punishments. The term “extrajudicial killing” is defined in the bill as “a deliberate killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The definition thus excludes executions carried out under proper judicial authority. The inclusion of the word “deliberated” is sufficient also to include killings that lack the requisite extrajudicial intent, such as those caused by a police officer’s authorized use of deadly force. The concept of “extrajudicial killings” is derived from article 3 common to the four Geneva Conventions of 1949. The phrase “under actual or apparent authority, or color of law” makes clear that the plaintiff must establish some governmental involvement in the torture or killing to prove a claim. Courts should look to 42 U.S.C. Sec. 1983 is construing “color of law” and agency law in construing “actual or apparent authority.” The bill does not attempt to deal with torture or killing by purely private groups. The bill provides that a court shall decline to hear and determine a claim if the defendant establishes that the claimant has not exhausted adequate and

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available remedies in the place in which the conduct giving rise to the claim occurred. This requirement ensures that U.S. courts will not intrude into cases more appropriately handled by courts where the alleged torture or killing occurred. It will also avoid exposing U.S. courts to unnecessary burdens, and can be expected to encourage the development of meaningful remedies in other countries. A ten year statute of limitation insures that the Federal Courts will not have to hear stale claims. In some instances, such as where a defendant fraudulently conceals his or her identification or whereabouts from the claimant, equitable tolling remedies may apply to preserve a claimant’s rights. The TVPA is subject to restrictions in the Foreign Sovereign Immunities Act of 1976 [FSIA]. Pursuant to the FSIA, “a foreign state,” or an “agency or instrumentality” thereof, [“]shall be immune from the jurisdiction of the courts of the United States and of the States,” with certain exceptions as elsewhere provided in the FSIA, and subject to international agreements to which the United States was a party at the time of the FSIA’s enactment. While sovereign immunity would not generally be an available defense, nothing in the TVPA overrides the doctrines of diplomatic and head of state immunity. These doctrines would generally provide a defense to suits against foreign heads of state and other diplomats visiting the United States on official business. IV. History of legislation Action in 100th Congress Legislation virtually identical to H.R. 2092 was introduced by Mr. Yatron and cosponsored originally by Judiciary Committee Chairman Rodino and Mr. Leach on March 4, 1987. The bill, H.R. 1417, was jointly referred to the Committee on Foreign Affairs and the Committee on the Judiciary. The Foreign Affairs Subcommittee on Human Rights held hearings on March 23 and April 20, 1988, and the Foreign Affairs Committee marked up and reported the bill favorably to the House with an amendment on June 7, 1988. The Judiciary Committee adopted an amendment in the nature of a substitute and reported the bill, as amended, favorably to the House by voice vote on September 30, 1988. This amended bill passed the House by voice vote on October 5, 1988. Action in 101st Congress Legislation virtually identical to H.R. 2092 was also introduced in the 101st Congress. The bill, H.R. 1662, was introduced by Mr. Yatron on April 4, 1989, and jointly referred to the Committee on the Judiciary and the Committee on Foreign Affairs. Original cosponsors included Judiciary Committee Chairman Brooks and Foreign Affairs Committee Chairman Fascell. The bill was marked

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up by the Subcommittee on Immigration, Refugees, and International Law on April 5, 1989, and ordered favorably reported, with an amendment, to the full Judiciary Committee by voice vote. The Judiciary Committee ordered the bill favorably reported, with amendments, to the House by voice vote on April 25, 1989. This amended bill passed the House by a vote of 362-4 on October 2, 1989. Action in 102d Congress H.R. 2092 was introduced by Mr. Yatron on April 24, 1991 and jointly referred to the Committee on Foreign Affairs and the Committee on the Judiciary. On September 12, 1991, the Subcommittee on International Law, Immigration and Refugees ordered the bill favorably reported to the full Judiciary Committee by voice vote. COMMITTEE OVERSIGHT FINDINGS In compliance with clause 2(l)(3)(A) of rule XI of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this reports. COMMITTEE ON GOVERNMENT OPERATIONS OVERSIGHT FINDINGS No findings or recommendations of the Committee on Government Operations were received as referred to in clause 2(l)(3)(D) of rule XI of the Rules of the House of Representatives. NEW BUDGET AUTHORITY AND TAX EXPENDITURES Clause 2(l)(3)(B) of House Rule XI is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE In compliance with clause 2(l)(3)(C) of rule XI of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill H.R. 2092, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 403 of the Congressional Budget Act of 1974: U.S. Congress, Congressional Budget Office, Washington, DC, November 21, 1991. Hon. Jack Brooks, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC.

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Dear Mr. Chairman: The Congressional Budget Office (CBO) has reviewed H.R. 2092, the Torture Victim Protection Act of 1991, as ordered reported by the House Committee on the Judiciary on November 19, 1991. The bill makes any person who, under the authority of any foreign nation, tortures or extrajudicially kills any person liable to the injured party or the injured party’s representative in a civil action. Enactment of the bill would have no significant budget impact on federal, state or local governments. Also, enactment of H.R. 2092 would not affect direct spending or receipts. Therefore, pay-as-you-go procedures would not apply to the bill. If you would like further details on this estimate, we will be pleased to provide them. The CBO staff contact is Kent Christensen, who can be reached at 226-2840. Sincerely, Robert D. Reischauer, Director. INFLATIONARY IMPACT STATEMENT Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of Representatives, the Committee estimates that H.R. 3048 will have no significant impact on prices and costs in the national economy. 2.

Senate Report No. 102-249*

November 26, 1991 [To accompany S. 313, as amended] The Committee on the Judiciary, to which was referred the bill (S. 313), having considered the same, reports favorably thereon with an amendment in the nature of a substitute and recommends that the bill as amended do pass. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the “Torture Victim Protection Act of 1991”. SEC. 2. ESTABLISHMENT OF CIVIL ACTION. (a) Liability.—An individual who, under actual or apparent authority or under color of law of any foreign nation, subjects another individual to torture or * S. REP. 102-249 (1991), reprinted in 1991 WL 258662.

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extrajudicial killing shall be liable for damages in a civil action to that individual (or that individual’s legal representative) or a beneficiary in a wrongful death action with respect to the death of that individual. (b) Exhaustion of Remedies.—A court shall decline to hear a claim under this section if it appears that the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred. (c) Statute of Limitation.—No action shall be maintained under the provisions of this section unless it is commenced within 10 years of the time when the cause of action arose. All principles of equitable tolling, however, shall apply in calculating this limitation period. SEC. 3. DEFINITIONS. (a) Extrajudicial Killing.—For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation. (b) Torture.—For the purposes of this Act(1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on a discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses of personality.

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I. LEGISLATIVE HISTORY This legislation was first introduced on June 6, 1986, by Senator Specter as S. 2528. The Senator reintroduced it in the 100th Congress on March 24, 1987, as S. 824 and, in the 101st Congress, on September 14, 1989, as S. 1629. On June 22, 1990, the Subcommittee on Immigration and Refugee Affairs held a hearing on this legislation. Witnesses at the hearing were: John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice; David P. Stewart, Assistant Legal Adviser for Human Rights and Refugee Affairs, U.S. Department of State; Robert F. Drinan, professor of law at Georgetown Law School, speaking on behalf of the American Bar Association; Michael H. Posner, executive director, Lawyers Committee for Human Rights; and John Shattuck, vice chairman, board of directors, Amnesty International, U.S.A. Senate bill 1629 was reported favorably by the subcommittee on July 19, 1990, by a 2-to-1 vote. In the 102d Congress, Senator Specter reintroduced the bill as S. 313 on January 31, 1991. The Senate Judiciary Committee reported S. 313 favorably by voice vote with an amendment in the nature of a substitute on November 21, 1991. This legislation is now cosponsored by Senators Leahy, Kennedy, Kohl, Heflin, Adams, Akaka, Bryan, D’Amato, Inouye, Jeffords, Kerry, McCain, Wellstone, and Wirth. II. NEED FOR LEGISLATION Official torture and summary execution violate standards accepted by virtually every nation. This universal consensus condemning these practices has assumed the status of customary international law. As the Second Circuit Court of Appeals held in a decision written by then-Chief Judge Irving R. Kaufman, “official torture is now prohibited by the law of nations.” Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980). Senator Kennedy explained at the June 22, 1990, subcommittee hearing why torture is so universally condemned: “There are few actions so dehumanizing as torture. Victims bear the physical and psychological scars of their experience for life. Its use is designed to terrorize and oppress entire populations.” The prohibition against summary executions has acquired a similar status. These universal principles provide little comfort, however, to the thousands of victims of torture and summary executions around the world. Despite universal condemnation of these abuses, many of the world’s governments still engage in or tolerate torture of their citizens, and state authorities have employed extrajudicial killings to execute many people. For 1990 alone, Amnesty International reports over 100 deaths attributed to torture in over 40 countries and 29 extrajudicial killings by death squads. See “Amnesty

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International Report 1991.” Too often, international standards forbidding torture and summary execution are honored in the breach. As Senator Specter noted in introducing S. 313 on January 31, 1991, While nearly every nation now condemns torture and extrajudicial killing in principle, in practice more than one-third of the world’s governments engage in, tolerate, or condone such acts. The purpose of this legislation is to provide a Federal cause of action against any individual who, under actual or apparent authority or under color of law of any foreign nation, subjects any individual to torture or extrajudicial killing. This legislation will carry out the intent of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by the U.S. Senate on October 27, 1990. The convention obligates state parties to adopt measures to ensure that torturers within their territories are held legally accountable for their acts. This legislation will do precisely that-by making sure that torturers and death squads will no longer have a safe haven in the United States. Judicial protection against flagrant human rights violations is often least effective in those countries where such abuses are most prevalent. A state that practices torture and summary execution is not one that adheres to the rule of law. Consequently, the Torture Victim Protection Act (TVPA) is designed to respond to this situation by providing a civil cause of action in U.S. courts for torture committed abroad. The TVPA would establish an unambiguous basis for a cause of action that has been successfully maintained under an existing law, section 1350 of title 28 of the U.S. Code, derived from the Judiciary Act of 1789 (the Alien Tort Claims Act) which permits Federal district courts to hear claims by aliens for torts committed “in violation of the law of nations.” (28 U.S.C. 1350). Section 1350 has other important uses and should not be replaced. In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir., 1980), the Court of Appeals for the Second Circuit held that section 1350 afforded it subject matter jurisdiction over a tort claim in which two citizens of Paraguay alleged that a former Paraguayan inspector general of police had tortured and killed a member of their family in Paraguay. After finding that torture has been condemned and renounced as an instrument of official policy by virtually all countries of the world, Chief Judge Irving R. Kaufman further held that customary international law provides individuals with the right to be free from torture by government officials. Consequently, section 1350 gave Federal courts jurisdiction over allegations of torture since torture violates the “law of nations.” As Judge Kaufman explained in the Filartiga decision:

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Among the rights universally proclaimed by all nations is the right to be free of physical torture. Indeed for purposes of civil liability, the torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence. The Filartiga case has met with general approval. In Forti v. Suarez Mason, 672 F.Supp. 1531 (N.D. Cal., 1987) motion to reconsider granted in part on other grounds, 694 F.Supp. 707 (N.D. Cal., 1988), the court followed Filartiga and held that allegations of official torture constituted a violation of the law of nations, as did prolonged arbitrary detention, summary execution, and “causing disappearance” of individuals. Suarez Mason was an action under section 1350 by Argentine citizens against former Argentine General Suarez Mason for damages arising out of alleged torture, murder, and prolonged arbitrary detention by military and police personnel under Suarez Mason’s authority and control. The revised draft of the Restatement of Foreign Relations Law of the United States provides that there should be a cause of action where a state practices “[summary] murder or causing disappearance [or] disappearance,” among other wrongs, because these practices violate the law of nations.1 At least one Federal judge, however, has questioned whether section 1350 can be used by victims of torture committed in foreign nations absent an explicit grant of a cause of action by Congress. In a concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir., 1984), cert. denied, 470 U.S. 103 (1985), Judge Robert H. Bork questioned the existence of a private right of action under the Alien Tort Claims Act, reasoning that separation of powers principles required an explicit grant by Congress of a private right of action for lawsuits which affect foreign relations. The TVPA would provide such a grant, and would also enhance the remedy already available under section 1350 in an important respect: while the Alien Tort Claims Act provides a remedy to aliens only, the TVPA would extend a civil remedy also to U.S. citizens who may have been tortured abroad. Official torture and summary executions merit special attention in a statute expressly addressed to those practices. At the same time, claims based on torture or 1 RESTATEMENT (REVISED) OF THE FOREIGN RELATIONS LAW Secs. 702, 703 (Tent. Draft No. 6, 1985).

OF THE

UNITED STATES,

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summary executions do not exhaust the list of actions that may appropriately be covered by section 1350.2 Consequently, that statute should remain intact. Furthermore, legislation allowing for the civil suits against torture occurring abroad is by no means unknown. States have the option, under international law, to decide whether they will allow a private right of action in their courts for violations of human rights that take place abroad. Several states have established that the international law of human rights can be enforced on behalf of individuals in their courts. See Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-Irala, reprinted in 19 I.L.M. 585, 602-03 (1980) (citing cases from the Constitutional Court of Germany, the Supreme Court of the Philippines, and the Court of First Instance of Courtrai (Belgium)). In addition, according to the doctrine of universal jurisdiction, the courts of all nations have jurisdiction over “offenses of universal interest.”3 III. CONGRESS’ POWER TO ENACT THIS LEGISLATION Congress clearly has authority to create a private right of action for torture and extrajudicial killings committed abroad. Under article III of the Constitution, the Federal judiciary has the power to adjudicate cases “arising under” the “law of the United States.” The Supreme Court has held that the law of the United States includes international law.4 In Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 481 (1983), the Supreme Court held that the “arising under” clause allows Congress to confer jurisdiction on U.S. courts to recognize claims brought by a foreign plaintiff against a foreign defendant. Congress’ 2 For example, outside of the torture and summary execution context, several Federal court decisions have relied on sec. 1350. See Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C., 1985) (finding that sec. 1350 granted Federal court jurisdiction to hear claim that the Swedish diplomat Raoul Wallenberg was arrested, imprisoned and possibly killed by representatives of the Soviet Union); Adra v. Clift, 195 F.Supp. 857 (D. Md., 1961) (in a child custody dispute between two aliens, the court held that wrongful withholding of custody is a tort, and defendant’s falsification of child’s passport in order to procure custody violated the law of nations). 3 Section 404 of the Restatement, supra fn. 1, sets forth the doctrine of universal jurisdiction: even where there is no other basis for jurisdiction, a “state may exercise jurisdiction to define and punish certain offenses recognized by the community of nations as of universal concern.” See also United States v. Yunis, 924 F.2d 1086 (D.C. Cir., 1991) (finding terrorism to be an offense of universal concern). 4 The law of nations is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.” “The Paquete Habana,” 175 U.S. 677, 700 (1900).

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ability to enact this legislation also drives from article I, section 8 of the Constitution, which authorizes Congress “to define and punish Offenses against the Laws of Nations.”5 IV. ANALYSIS OF LEGISLATION The legislation authorizes courts in the United States6 to hear cases brought by or on behalf of a victim of any individual who, under actual or apparent authority of or under color of law of any foreign action, subjects any person to torture or extrajudicial killing. A. Extrajudicial killing The TVPA incorporates into U.S. law the definition of extrajudicial killing found in customary international law. This definition conforms with that found in the Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field (1949).7 This definition further excludes killings that are lawful under international law—such as killings by armed forces during declared wars which do not violate the Geneva Convention8 and killings necessary to effect a lawful arrest or prevent the escape of a person lawfully detained.9 Thus, only killings which are truly extrajudicial in nature and which violate international law are actionable under the TVPA. B. Torture The definition of torture in this bill includes word-for-word the understandings included by the Senate concerning the definition of torture in the Torture 5

In Ex parte Quirin, 317 U.S. 1, 28 (1942), the Supreme Court interpreted the “define and punish” clause to allow Congress to make substantive laws incorporating international rules intended to govern individual behavior. 6 While the legislation specifically provides Federal districts courts with jurisdiction over these suits, it does not preclude state courts from exercising their general jurisdiction to adjudicate the same type of cases. As a practical matter, however, state courts are not likely to be inclined or well-suited to consider these cases. International human rights cases predictably raise legal issues-such as interpretations of international law-that are matters of Federal common law and within the particular expertise of Federal courts. 7 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 3, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31. 8 See Geneva Convention, supra at fn. 7, art. 3, sec. 1; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, art. 15, sec. 2 (excluding “deaths resulting from lawful acts of war” from the prohibition against extrajudicial killings). 9 See European Convention, supra fn. 8, art. 2, sec. 2.

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Convention when it ratified that convention on October 27, 1990 (Understandings 1 (a) and (b)). See Congressional Record at S 17491-92 (daily ed. Oct. 27, 1990). The definition of torture exempts those actions pursuant to “lawful sanctions.” There has been some confusion whether this phrase refers to sanctions which are lawful under the foreign state’s laws, even if they violate international law, or whether this phrase only includes sanctions which are lawful under international law. This debate was resolved by the U.S. Senate during the ratification of the Torture Convention and courts construing the term “lawful sanctions” in this legislation’s definition of torture should refer for guidance to the following legislative history of the ratification of the Torture Convention. When the U.S. Senate ratified the Torture Convention, it included an understanding, “Understanding 1(c),” which states that the term “lawful sanctions” refers to sanctions authorized by domestic law or by judicial interpretation of such law. The understanding continues, however: Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture. As Assistant Secretary for Legislative Affairs with the Department of State Janet G. Mullins explained in a December 11, 1989, letter to Senator Claiborne Pell, chairman of the Senate Committee on Foreign Relations, the U.S. Government “does not regard authorized sanctions that unquestionably violate international law as ‘lawful sanctions’ exempt from the prohibition on torture.” C. Who can sue The legislation permits suit by the victim or the victim’s legal representative or a beneficiary in a wrongful death action. The term “legal representative” is used only to include situations in which the executor or executrix of the decedent’s estate is suing or in which an individual is appearing in court as a “friend” of the victim because of that victim’s mental or physical incapacity or youthful age. The term “beneficiary in a wrongful death action” is generally intended to be limited to those persons recognized as legal claimants in a wrongful death action under Anglo-American law.10 10

Where application of Anglo-American law would result in no remedy whatsoever for an extrajudicial killing, however, application of foreign law recognizing a claim by a more distant relation in a wrongful death action is appropriate. In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F.2d 1092, 1097-98 (5th Cir., 1986) (recognizing claim of nephew for wrongful death of aunt where Louisiana law on wrongful death action would have afforded no remedy).

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D. Who can be sued First and foremost, only defendants over which a court in the United States has personal jurisdiction may be sued. In order for a Federal court to obtain personal jurisdiction over a defendant, the individual must have “minimum contacts” with the forum state, for example through residency here or current travel.11 Thus, this legislation will not turn the U.S. courts into tribunals for torts having no connection to the United States whatsoever. The legislation uses the term “individual” to make crystal clear that foreign states or their entities cannot be sued under this bill under any circumstances: only individuals may be sued. Consequently, the TVPA is not meant to override the Foreign Sovereign Immunities Act (FSIA) of 1976,12 which renders foreign governments immune from suits in U.S. courts, except in certain instances. The TVPA is not intended to override traditional diplomatic immunities which prevent the exercise of jurisdiction by U.S. courts over foreign diplomats. The United States is a party to the Vienna Convention on Diplomatic Relations, under which diplomats are immune from civil lawsuits except with regard to certain commercial activities.13 Nor should visiting heads of state be subject to suit under the TVPA. Article 2(1) of the United Nations Convention on Special Missions provides that, when one state sends an official mission to another, the visiting head of state “shall enjoy in the receiving State or in a third State the facilities, privileges and immunities accorded by international law to Heads of State on an official visit.”14 However, the committee does not intend these immunities to provide former officials with a defense to a lawsuit brought under this legislation. To avoid liability by invoking the FSIA, a former official would have to prove an agency relationship to a state, which would require that the state “admit some knowledge or authorization of relevant acts.” 28 U.S.C. 1603(b). Because all states are officially opposed to torture and extrajudicial killing, however, the 11 See International Shoe Co. v. Washington, 326 U.S. 310 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984). 12 The FSIA is codified at 28 U.S.C. 1330, 1332(A) (2)-(3); 1391(f), 1441(d), and 1602-1611. 13 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, art. 31, 35. 14 Convention on Special Missions and Optional Protocol Concerning the Compulsory Settlement of Disputes, G.A. Res. 2530, 24 U.N. GAOR Supp. (No. 30) at 99, U.N. Doc. A/7799 (1969).

Statutory Appendix 577

FSIA should normally provide no defense to an action taken under the TVPA against a former official. Similarly, the committee does not intend the “act of state” doctrine to provide a shield from lawsuit for former officials. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the Supreme Court held that the “act of state” doctrine is meant to prevent U.S. courts from sitting in judgment of the official public acts of a sovereign foreign government. Since this doctrine applies only to “public” acts, and no state commits torture as a matter of public policy, this doctrine cannot shield former officials from liability under this legislation.15 E. Scope of liability In order for a defendant to be liable, the torture or extrajudicial killing must have been taken “under actual or apparent authority or under color of law of a foreign nation.” Consequently, this legislation does not cover purely private criminal acts by individuals or nongovernmental organizations. However, because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of “official actions” taken in the course of an official’s duties. Consequently, the phrase “actual or apparent authority or under color of law” is used to denote torture and extrajudicial killings committed by officials both within and outside the scope of their authority. Courts should look to principles of liability under U.S. civil rights laws, in particular section 1983 of title 42 of the United States Code, in construing “under color of law” as well as interpretations of “actual or apparent authority” derived from agency theory in order to give the fullest coverage possible. The legislation is limited to lawsuits against persons who ordered, abetted, or assisted in the torture. It will not permit a lawsuit against a former leader of a country merely because an isolated act of torture occurred somewhere in that country. However, a higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts-anyone with higher 15

Accord Trajano v. Marcos, 878 F.2d 1439 (9th Cir., 1989) (unpublished decision reversing lower court dismissal of a lawsuit against former Philippines President Ferdinand Marcos under the “act of state” doctrine and remanding for further adjudicating on the merits). See also Restatement, supra fn. 1, sec. 469, comment c (rejecting the act of state defense in suits alleging violations of fundamental human rights). It is precisely because no state officially condones torture or extrajudicial killings that the Senate in its ratification of the Torture Convention made clear that official sanctions of a state could not possibly include acts of torture. See supra sec. IV(B).

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authority who authorized, tolerated or knowingly ignored those acts is liable for them.16 In Forti v. Suarez Mason, the court found Suarez Mason liable as Commander of the First Army Corps under the theory that the alleged acts of torture and summary execution were committed by personnel under his command “acting pursuant to a ‘policy, pattern and practice’ of the First Army Corps.” Suarez Mason, 672 F.Supp. at 1537-38. Thus, although Suarez Mason was not accused of directly torturing or murdering anyone, he was found civilly liable for those acts which were committed by officers under his command about which he was aware and which he did nothing to prevent. Similarly, in In re Yamashita, 327 U.S. 1 (1946), the Supreme Court held a general of the Imperial Japanese Army responsible for a pervasive pattern of war crimes committed by his officers when he knew or should have known that they were going on but failed to prevent or punish them.17 Such “command responsibility” is shown by evidence of a pervasive pattern and practice of torture, summary execution or disappearances.18 Finally, low-level officials cannot escape liability by claiming that they were acting under orders of superiors. Article 2(3) of the Torture Convention explicitly states that “An order from a superior official or a public authority may not be invoked as a justification for torture.” F. Exhaustion of remedies A court may decline to exercise the TVPA’s grant of jurisdiction only if it appears that adequate and available remedies can be assured where the conduct complained of occurred, and that the plaintiff has not exhausted local remedies there. Cases involving torture abroad which have been filed under the Alien Tort 16

Article 4(1) of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides: “Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in the torture.” (Emphasis added.) Article 3 of the Inter-American Convention to Prevent and Punish Torture similarly provides: The following shall be held guilty of the crime of torture: (a) A public servant or employee who, acting in that capacity, orders, instigates or induces the use of torture, or directly commits it or who, being able to prevent it, fails to do so. 17 See also L. Oppenheim, “International Law: A Treatise,” vol. II, sec. 253(a), 572-74 (7th ed., 1965). 18 As the opinion of the Tokyo War Crimes Trial tribunal explained: “that crimes are notorious, numerous and widespread as to time and place are matters to be considered in imputing knowledge.” “The Tokyo War Crimes Trial,” reprinted in 2 L. Friedman (ed.) “The Law of War: A Documentary Study,” 1039 (1972).

Statutory Appendix 579

Claims Act show that torture victims bring suits in the United States against their alleged torturers only as a last resort. Usually, the alleged torturer has more substantial assets outside the United States and the jurisdictional nexus is easier to prove outside the United States. Therefore, as a general matter, the committee recognizes that in most instances the initiation of litigation under this legislation will be virtually prima facie evidence that the claimant has exhausted his or her remedies in the jurisdiction in which the torture occurred. The committee believes that courts should approach cases brought under the proposed legislation with this assumption. More specifically, as this legislation involves international matters and judgments regarding the adequacy of procedures in foreign courts, the interpretation of section 2(b), like the other provisions of this act, should be informed by general principles of international law. The procedural practice of international human rights tribunals generally holds that the respondent has the burden of raising the nonexhaustion of remedies as an affirmative defense and must show that domestic remedies exist that the claimant did not use.19 Once the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant. This practice is generally consistent with common-law principles of exhaustion as applied by courts in the United States. See, e.g., Honig v. Doe, 484 U.S. 305, 325-29 (1988) (allowing plaintiffs to by-pass administrative process where exhaustion would be futile or inadequate). Courts in the United States are familiar with the operation of the exhaustion requirement.20 As in the international law context, courts in the United States do not require exhaustion in a foreign forum when foreign remedies are unobtainable, ineffective, inadequate, or obviously futile.21 In this determination, courts in the United 19 See, e.g., American Convention of Human Rights, adopted Nov. 4, 1950, art. 46(2), O.A.S.T.S. No 36, and European Convention on Human Rights, supra at fn. 8, art. 26. See generally P. Schochet, “A New Role for an Old Rule: Local Remedies and Expanding Human Rights Jurisdiction Under the Torture Victim Protection Act,” 19, “Columbia Human Rights Law Review,” 223, 232-50 (1987). 20 See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) (no federal civil rights action against state officials for deprivation of property where the plaintiff did not resort to state remedies). 21 See, e.g., Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y. 2d 52, 57 (1978).

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States are equipped to deal with the intricacies of determining issues of foreign law and will have to undertake a case-by-case approach.22 If a final judgment has been rendered against the plaintiff abroad, the court will have to determine whether to recognize that judgment and dismiss the case. In such a case, the usual principles of res judicata apply.23 Grounds for nonrecognition of foreign judgments include situations much like those that exempt a plaintiff from the exhaustion of remedies requirement: unfairness of the judicial system, unfair procedures, and lack of competence.24 Courts also will not recognize or enforce foreign judgments contrary to public policy or fundamental notions of decency and justice.25 G. Statute of limitations The legislation provides for a 10-year statute of limitations, but explicitly calls for consideration of all equitable tolling principles in calculating this period with a view toward giving justice to plaintiff’s rights.26 Illustrative, but not exhaustive, of the types of tolling principles which may be applicable include the following.27 The statute of limitation should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated.28 It should also be tolled where the defendant has 22

Fed. R. Civ. p. 44.1 (Determination of Foreign Law). Hilton v. Guyot, 159 U.S. 113, 166-67 (1895). 24 Restatement, supra at fn. 1, Sec. 492. 25 Id. Sec. 492, comment f. 26 See Burnett v. New York Cent. R.R., 380 U.S. 424, 428 (1965) (justice of plaintiff’s rights usually outweighs protection of defendant in considering equitable tolling). 27 See generally Anderson v. Wisconsin Gas Co., 619 F. Supp. 635 (E.D. Wisc., 1985) (discussing factors that give rise to equitable tolling). 28 Boag v. Chief of Police, 669 F. 2d 587 (9th Cir., 1982) (plaintiff’s imprisonment suspends running of time limit), cert. denied, 459 U.S. 849 (1982); Brown v. Bigger, 622 F. 2d 1025 (10th Cir., 1980) (same); Origet v. Washtenaw County, 549 F. Supp. 792 (E.D. Mich., 1982) (infancy). 23

Statutory Appendix 581

concealed his or her whereabouts or the plaintiff has been unable to discover the identity of the offender.29 However, the explicit reference in this legislation to principles of equitable tolling is in no way intended to suggest that such principles do not apply in other statutes adopted by Congress which do not explicitly contain equitable tolling clauses. V. ESTIMATED COST OF LEGISLATION In accordance with paragraph 11(a) of Rule XXVI of the Standing Rules of the Senate and section 404 of the Congressional Budget Act of 1974, the committee provides the following cost estimate, prepared by the Congressional Budget Office: U.S. Congress, Congressional Budget Office, Washington, DC, November 21, 1991. Hon. Joseph R. Biden, Jr., Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office (CBO) has reviewed S. 313, the Torture Victim Protection Act of 1991, as ordered reported by the Senate Committee on the Judiciary on November 21, 1991. The bill makes any person who, under the authority of any foreign nation, tortures or extrajudicially kills any person liable to the injured party or the injured party’s representative in a civil action. Enactment of the bill would have no significant budget impact on Federal, State, or local governments. Also enactment of S. 313 would not affect direct spending or receipts. Therefore, pay-as-you-go procedures would not apply to the bill. If your would like further details on this estimate, we will be pleased to provide them. The CBO staff contact is Kent Chritensen, who can be reached at 226-2840. Sincerely, Robert D. Reischauer, Director VI. REGULATORY IMPACT STATEMENT In compliance with paragraph 11(b), rule XXVI, of the Standing Rules of 29 Cerbone v. International Ladies’ Garment Workers Union, 768 F. 2d 45 (2d Cir., 1985) (fraudulent concealment tolled time limitation).

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the Senate, the committee, after due consideration, concludes that the act will not have a direct regulatory impact. VII. MINORITY VIEWS OF MESSRS. SIMPSON AND GRASSLEY We certainly condemn acts of cruelty and inhumanity, and we share Senator Specter’s deeply felt concern that atrocious and frequent offenses of torture are too often not remedied. One offense not remedied is too many. Senate bill 313, however, is not an appropriate way to remedy foreign acts of torture. We oppose S. 313, the Torture Victims Protection Act, for four reasons: (1) it is in tension with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (2) it possibly exceeds Congress’ constitutional authority, (3) it inappropriately establishes U.S. courts as the forum in which suits that have no substantial connection with the United States could be brought, and (4) it might create serious difficulties with the management of foreign policy. THE U.N. CONVENTION AGAINST TORTURE Under S. 313, a foreign national who commits torture in a foreign country could be held liable in a U.S. court, no matter the victim’s domicile. The Department of Justice noted, and we agree, that “[s]uch a unilateral assertion of extraterritorial jurisdiction would be in tension with the framework of the [U.N. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment].” Statement of John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, before the Senate Subcommittee on Immigration and Refugee Affairs, June 22, 1990 (concerning S. 1629 and H.R. 1662, substantially similar to S. 313). The convention was ratified by the Senate October 27, 1991. According to the administration, the convention requires countries to provide remedies for acts of torture which took place only within their own territory. In fact the convention specifically declined to extend coverage to acts committed outside the country in which the lawsuit is brought. We do not wish to second-guess the experts who drafted this treaty, and believe it is unwise to do explicitly what its drafters chose not to do-extend the coverage to extraterritorial actions. CONGRESSIONAL AUTHORITY Senate bill 313 also appears to over-extend Congress’ constitutional authority. Congress has the power to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Article I, section 8, clause 10. But as the Department of Justice has noted, [t]he reference in the constitutional text to “punish[ing] Piracies and Felonies and Offenses” suggests that the Founders intended that

Statutory Appendix 583

Congress use this power to define crimes. It is a difficult and unresolved question, therefore, whether that power extends to creating a civil cause of action in this country for disputes that have no factual nexus with the United States or its citizens. In short, we simply do not agree with the contention in the majority views that Congress “clearly has authority to create a private right of action for torture and extrajudicial killings committed abroad.” The majority views cite Verlinden B.V. v. Central Bank of Nigeria (461 U.S. 480 (1983)) as justification for this bill. However, in that case there was a clear U.S. connection. The case involved a contract between a Dutch corporation and the Government of Nigeria (which wished to purchase 240,000 metric tons of cement). When Central Bank of Nigeria issued an unconfirmed letter of credit through Morgan Guaranty Trust Company of New York, the Dutch corporation filed suit, claiming an anticipatory breach of contract. The connection to the United States in this case is clear: while the plaintiff and defendant in the breach of contract suit were foreign entities, an instrumentality of that breach-however unintended-was a United States corporation, Morgan Guaranty Trust Company, of New York, which acted as a correspondent bank to the Central Bank of Nigeria. Thus, the Verlinden case does consider some actions occurring within the United States, while S. 313 would address actions which occurred wholly outside the United States, with no connection to the United States. We must concur with the Department of Justice’s reservations about the constitutionality of this statute. ESTABLISHES INAPPROPRIATE FORUM The principle behind the common law doctine of forum non conveniens, which prevents parties from having their dispute adjudicated in a forum with which they have no connection, describes our overriding problem with S. 313. The doctrine addresses the logistical problems of bringing witnesses and evidence from one state to another when the parties and witnesses have no connection to the forum state and to which the evidence does not have even a remote attachment. For example, a Montana plaintiff should not bring a Wyoming defendant to a New York Federal District Court when the action originates far from New York and when the parties have no substantial connection with New York. For exactly the same reasons, the United States is not the appropriate forum for a foreign national to hold a foreign defendant to answer for action which occurred far from the United States.

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DIFFICULTIES WITH THE MANAGEMENT OF FOREIGN POLICY The executive branch, through the Department of Justice, has expressed a most serious concern with S. 313, which we share. Senate bill 313 could create difficulties in the management of foreign policy. For example, under this bill, individual aliens could determine the timing and manner of the making of allegations in a U.S. court about a foreign country’s alleged abuses of human rights. There is no more complex and sensitive issue between countries than human rights. The risk that would be run if an alien could have a foreign country judged by a U.S. court is too great. Judges of U.S. courts would, in a sense, conduct some of our Nation’s foreign policy. The executive branch is and should remain, we believe, left with substantial foreign policy control. In addition the Justice Department properly notes that our passage of this bill could encourage hostile foreign countries to retaliate by trying to assert jurisdiction for acts committed in the United States by the U.S. Government against U.S. citizens. For example, if this bill’s principles were adopted abroad, Saddam Hussein could try a United States citizen police officer who happened to be present in Iraq, in an Iraqi court, for alleged human rights abuses against any United States citizen that the policeman happened to arrest while performing his duties in the United States. We very much wish to avoid that result, and believe that this legislation unintentionally would encourage such actions. CONCLUSION This bill has noble objectives. However, we believe that the possible negative consequences are too great, and the constitutional authority for Congress to act too tenuous, to allow us to vote in favor of this legislation. Alan K. Simpson. Chuck Grassley. 3.

Statement by President George H.W. Bush upon Signing H.R. 2092*

28 Weekly Compilation of Presidential Documents 465, March 16, 1992 * Statement by President George Bush Upon Signing H.R. 2092, 28 Weekly Compilation of Presidential Documents 465 (Mar. 16, 1992), reprinted in 1992 U.S.C.C.A.N. 91.

Statutory Appendix 585

Today I am signing into law H.R. 2092, the “Torture Victim Protection Act of 1991,” because of my strong and continuing commitment to advancing respect for and protection of human rights throughout the world. The United States must continue its vigorous efforts to bring the practice of torture and other gross abuses of human rights to an end wherever they occur. I regret that the legislation proposed by the Administration to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has not yet been enacted. This proposed implementing legislation would provide a tougher and more effective response to the problem, putting in place for torturers the same international “extradite or prosecute” regime we have for terrorists. The Senate gave its advice and consent to the Torture Convention on October 27, 1990, but the United States cannot proceed to became a party until the necessary implementing legislation is in place. I again call upon the Congress to take prompt action to approve the Torture Convention implementing legislation. I note that H.R. 2092 does not help to implement the Torture Convention and does present a number of potential problems about which the Administration has expressed concern in the past. This legislation concerns acts of torture and extrajudicial killing committed overseas by foreign individuals. With rare exceptions, the victims of these acts will be foreign citizens. There is thus a danger that U.S. courts may become embroiled in difficult and sensitive disputes in other countries, and possibly ill-founded or politically motivated suits, which have nothing to do with the United States and which offer little prospect of successful recovery. Such potential abuse of this statute undoubtedly would give rise to serious frictions in international relations and would also be a waste of our own limited and already overburdened judicial resources. As I have noted in connection with my own Civil Justice Reform Initiative, there is too much litigation at present even by Americans against Americans. The expansion of litigation by aliens against aliens is a matter that must be approached with prudence and restraint. It is to be hoped that U.S. courts will be able to avoid these dangers by sound construction of the statute and the wise application of relevant legal procedures and principles. These potential dangers, however, do not concern the fundamental goals that this legislation seeks to advance. In this new era, in which countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that human rights are respected everywhere. I again call upon the Congress to make a real

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contribution to the fight against torture by enacting the implementing legislation for the Torture Convention so that we can finally ratify that important treaty. Finally, I must note that I am signing the bill based on my understanding that the Act does not permit suits for alleged human rights violations in the context of United States military operations abroad or law enforcement actions. Because the Act permits suits based only on actions “under actual or apparent authority, or color of law, of any foreign nation,” I do not believe it is the Congress’ intent that H.R.2092 should apply to United States Armed Forces or law enforcement operations, which are always carried out under the authority of United States law. GEORGE BUSH The White House, March 12, 1992.

TABLE OF INTERNATIONAL DOCUMENTS African Charter on Human and Peoples’ Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), 177 Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, 22 U.S.C. § 287, 381 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279, 162, 274 American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970), 177, 181, 402 Bustamante Code (Havana Convention of 1928), Feb. 20, 1928, 86 L.N.T.S. 111, 537 Charter of the International Military Tribunal (Nuremberg Charter), Aug. 8, 1945, 82 U.N.T.S. 279, 161-3, 169, 274 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 59, 78, 140, 215, 563, 571, 577, 581-2, 584 Convention Against Transnational Organized Crime, Nov. 15, 2000, G.A. Res. 25, annex I, U.N. GAOR, 55th Sess., Supp. No. 49, U.N. Doc. A/45/49 (Vol. 1), 175 Convention Concerning Forced or Compulsory Labor, June 28, 1930, 39 U.N.T.S. 55, 171 Convention Concerning the Worst Forms of Child Labor, June 17, 1999, 38 I.L.M. 1207 (1999), 173, 226 Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, 202 Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 28 I.L.M. 620, 537 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, G.A. Res. 2391(XXIII), U.N. Doc. A/7218, 157, 164, 167 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, 59, 156, 215, 251 Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15, 381-2, 576 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (1989), 174-5, 226 Convention on Special Missions, Dec. 8 1969, 1400 U.N.T.S. 231, 380, 576 Convention with Respect to the Laws and Customs of War on Land (Hague Convention), July 29, 1899, 32 Stat. 1803, 161, 487, 492 587

588 International Human Rights Litigation in U.S. Courts

Declaration of United Nations Conference on the Human Environment, June 5-16, 1972, U.N. Doc.A/Conf.48/14/Rev. 1, 206 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Feb. 7, 1997, G.A. Res. 3452 (XXX), U.N. Doc. A/RES/51/86, 182 Declaration on the Protection of All Persons from Enforced Disappearance, Dec. 18, 1992, G.A. Res. 47/133, 47 U.N. GAOR Supp. No. 49, U.N. Doc. A/47/49, 167 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 E.T.S. 5, 177, 402, 574 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31, 140, 164, 222, 574 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85, 140, 164, 222 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 287, 150 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 135, 140, 164, 222 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, 487 Inter-American Convention on Forced Disappearance of Persons, June 9, 1994, 33 I.L.M. 1429, 168 Inter-American Convention to Prevent and Punish Torture, Dec. 12, 1985, O.A.S.T.S. 67, 578 International Convention Against the Taking of Hostages, Dec. 17 1979, 1316 U.N.T.S. 205, 95, 152-3, 557 International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, G.A. Res. 61/177, U.N. Doc A/RES/61/177, 168 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, 203 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 and 1057 U.N.T.S. 407, 68, 151, 170, 176, 191, 195, 202, 215 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, Aug. 26, 2003, U.N. Doc E/CN.4/Sub.2/2003/12/Rev.2, 309 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, UN Doc.A/54/RES/263, 226 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, UN Doc. A/54/RES/263, 175

Table of International Documents

589

Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, Dec. 3, 1973, G.A. Res. 3074 (XXVIII), U.N. Doc. A/RES/ 3074 (XXVIII), 157 Protocol Additional to the Geneva Conventions of 1949, Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, 151, 165-6, 224, 263 Protocol Additional to the Geneva Conventions of 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609, 165-6, 224 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Nov. 15, 2000, G.A. Res. 55/25, U.N. Doc. A/RES/55/25, 174 Report of United Nations Commission on the Truth for El Salvador, Apr. 1, 1993, U.N. Doc. S/25500 507 Report of the Working Group on Enforced or Involuntary Disappearance, GAOR, 58th Session Supplement No. 40 (Vol. I), at 100, U.N. Doc. A/58/40 (2002), 167 Rio Declaration on Environment and Development, Aug. 12, 1992, U.N. Doc A/CONF.151/26 (Vol. I), 206 Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253, 169-70 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 266 U.N.T.S. 3, 170 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, 136, 205, 209 United Nations Charter, 561 Universal Declaration of Human Rights, Dec. 10, 1948, U.N.G.A. Res. 217 A (III) (1948), 67, 140, 148, 170, 176-7, 191, 195, 202, 234 Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261, 216, 221, 379 Vienna Convention on Diplomatic Relations, April 18, 1961, 500 U.N.T.S. 95, 138, 378-9, 382, 576 Vienna Declaration on Human Rights, July 12, 1993, U.N. Doc A/CONF. 157/23, 202

TABLE OF CASES A, B, C, D, E, F v. Zemin, 191, 251 Abdullahi v. Pfizer, Inc., 313, 314, 395, 397 Abebe-Jiri v. Negewo, 14, 16, 27, 32, 33, 81, 107, 139, 146, 180, 184, 441, 465, 503, 511, 517, 526, 534 Abiodun v. Martin Oil Service, Inc., 213 Abiola v. Abubakar, see also Enahoro v. Abubakar, 353, 409 Abraham v. Volkswagen of America, Inc., 31 Abur v. Republic of Sudan, 273 Acree v. Republic of Iraq, 100, 145, 146 Adams v. Unione Mediterranea Di Sicurta, 250 Adamu v. Pfizer, Inc., 126 Adra v. Clift, 7, 297, 573 Afram Export Corp. v. Metallurgiki Halyps, S.A., 488 Agency Holding Corp. v. Malley-Duff & Ass’ns., 233, 234 Aguinda v. Texaco, Inc., see also Jota v. Texaco, Inc., 206, 207, 391, 395, 397, 400, 401 Ahmed v. Hoque, 378 Aidi v. Yaron, 379 Al Odah v. United States, 27 Alan Neuman Products, Inc. v. Albright, 117 Aldana v. Del Monte Fresh Produce, N.A., Inc., 22, 23, 29, 64, 69, 71, 83, 140, 144, 145, 146, 147, 180, 182, 186, 195, 253, 268, 274, 315, 317, 326, 396 Alejandre v. Republic of Cuba, 96, 99, 100, 529 Alexander v. Federal Bureau of Investigations, 296 Alfred Dunhill of London, Inc. v. Republic of Cuba, 349 Alicog v. Kingdom of Saudi Arabia, 93 Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 487 Allied Bank International v. Banco Credito Agricola de Cartago, 426, 427, 430 Allstate Insurance Co. v. Quick, 293 Almog v. Arab Bank, PLC, 24, 71 Alperin v. Vatican Bank, 340, 341, 343, 344, 431, 547 Altmann v. Republic of Austria, 546 591

592 International Human Rights Litigation in U.S. Courts

Alvarez-Machain v. United States, 19, 88, 219, 287, 288, 390 American Civil Liberties Union v. Department of Defense, 475 Amerada Hess Shipping Corp. v. Argentine Republic, see also Argentine Republic v. Amerada Hess Shipping Corp., 157 American Insurance Association v. Garamendi, 362, 363, 426, 549 American Federation of Labor v. Watson, 289 Amlon Metals, Inc. v. FMC Corp., 31, 208, 213 Anderman v. Federal Republic of Austria, 338 Anderson v. Wisconsin Gas Co., 580 APWU v. Potter, 119 Arar v. Ashcroft, 272, 275, 282, 303, 304, 306 Arce v. Garcia, 14, 22, 386, 388, 389, 390, 447, 461, 503, 526, 533 Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 479 Argentine Republic v. Amerada Hess Shipping Corp., see also Amerada Hess Shipping Corp. v. Argentine Republic, 89, 91, 139 Arias v. DynCorp, 414, 421, 422 Arndt v. UBS AG, 16, 21, 29, 65, 213, 278 Asakura v. City of Seattle, 297 Atkins v. Virginia, 183 Baker v. Carr, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 423, 425, 548 Banco National de Cuba v. Sabbatino, 6, 36, 43, 105, 108, 349, 350, 351, 352, 353, 402, 418, 423, 576 Bancoult v. McNamara, 294, 301 Bano v. Union Carbide Corp., 208, 529 Bao Ge v. Li Peng, 160, 172, 255 Barcelona Traction Power & Light Co. (Bel. v. Spain), 320 Barclays Bank PLC v. Franchise Tax Bd. Of California, 426 Beanal v. Freeport-McMoran, Inc., 16, 27, 64, 82, 160, 190, 204, 207, 208, 233, 254-255, 325 Beck v. Prupis, 117 Belance v FRAPH, 465, 483, 484 Belgrade v. Sidex International Furniture Corp., 427 Belhas v. Ya’alon, 366, 368, 372, 477 Bell v. Hood, 30 Berkovitz by Berkovitz v. United States, 300 Bersch v. Drexel Firestone, Inc., 118 Bigio v. Coca-Cola Co., 191, 200, 212, 254, 353, 355, 358, 391, 462

Table of Cases

593

Binks Manufacturing Co. v. National Presto Industrial, Inc., 497 Biton v. The Palestinian Interim Self-Government Authority, 111 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 282 Blackburn v. United Parcel Service, Inc., 520 BMW v. Gore, 528 Boag v. Chief of Police, 580 Bodner v. Banque Paribas, 211, 315, 356, 547 Bodoff v. Islamic Republic of Iran, 99 Boim v. Quranic Literacy Institute, 112, 217, 272, 273 Bolchos v. Darrell, 6, 220 Boumediene v. Bush, 281, 305 Bowen v. Georgetown University Hospital, 427 Bowoto v. Chevron Texaco Corp, 114, 126, 232, 233, 235, 256, 271, 276, 277, 313. 314, 316, 318, 319, 321, 322, 326, 419, 420, 453, 461, 463, 464, 480, 481, 488, 490, 498, 508 Boyden v. Troken, 495 Boyle v. United Technologies Corp., 328, 329, 330, 331 Breard v. Greene, 289 Bridgeway Corp. v. Citibank, 519 Brink’s Mat Ltd. v. Diamond, 118 Brocsonic Co., Ltd. v. M/V “Mathilde Maersk,” 476, 477 Brooks-McCollum ex rel. Emerald Ridge Serv. Corp. v. Emerald Ridge Serv Corp. Bd. Of Dirs., 21 Broom v. Dudley, 297 Brown v. Bigger, 580 Brown v. Esmor Cor. Services, Inc., 243 Brown v. United States, 302 Bureerong v. Uvawas, 125 Burger-Fischer v. Degussa AG, 172 Burnett v. Al Baraka Investment & Development Corp., 116, 252, 265, 273, 315, 326 Burnett v. New York Cent. R.R., 580 Burnham v. Superior Court of California, 43, 249 Burton v. Wilmington Parking Authority, 253 Butte Mining PLC v. Smith, 118, 119 Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 367, 371 Cabello v. Fernandez-Larios, see also Estate of Cabello v. Fernandez-Larios, 14, 22, 23, 64, 76, 83, 84, 85, 88, 139, 144, 146, 149, 163, 164, 261, 266, 268, 272, 274, 316, 317, 386, 388, 389, 390, 391, 403, 442, 461, 503, 520, 521, 526, 529

594 International Human Rights Litigation in U.S. Courts

Cabiri v. Assasie-Gyimah, 386, 391, 396 Cada v. Baxter Healthcare Corp, 545 Calderone v. Nariera Vacuba S/A, 418 Carley v. Wheeled Coach, 329 Carlson v. Green, 282 Carmichael v. United Tech. Corp., 265, 274, 315 Cedric Kushner Promotions, Ltd. v. King, 117 Central Bank of Denver v. First Interstate Bank of Denver, 270, 271, 272 Cerbone v. International Ladies’ Garment Workers Union, 580 Chabad v. Russian Fed’n, 546 Chambers v. NASCO, Inc., 533 Chang v. Chen, 115 Chappell v. Wallace, 332 Chavez v. Carranza, 22, 83, 258, 390, 452, 461, 503, 515 Chuidian v. Philippine National Bank, 210, 367, 368, 369, 370, 373, 462 Cicippio-Puelo v. Islamic Republic of Iran, 94, 100, 101, 152 City of Boerne v. Flores, 190 City of N.Y. v. Permanent Mission of India to the U.N., 426, 427 Clinton v. New York, 325 Coca-Cola Foods v. Empressa Comercial Internacional de Frutas S.A., 490 Cohen v. Hartman, 210 Collett v. Socialist Peoples’ Libyan Arab Jamahiriya, 403 Commercial Cleaning Servs. v. Colin Serv. Sys., Inc., 118 Committee of U.S. Citizens in Nicaragua v. Reagan, 202, 302 Conley v. Gibson, 30, 452 Consolidated Gold Fields PLC v. Menarche, S.A., 119 Container Corp. of America v. Franchise Tax Board, 418 Cooper Industrial, Inc. v. British Aerospace, Inc., 487 Corfu Channel Case (U.K. v. Alb.), 206 Corrie v. Caterpillar, Inc., 22, 83, 109, 254, 270, 318, 338, 339, 354, 463 Crosby v. National Foreign Trade Council, 362 Cruz v. United States, 418 Da Yen v. Kissinger, 180 Daliberti v. Republic of Iraq, 94, 145, 394 Dammarell v. Islamic Republic of Iran, 96 DaSilva v. Esmor Correctional Services, 243 Daventree Ltd. v. Republic of Azerbaijan, 397

Table of Cases

595

Davric Maine Corp. v. U.S. Postal Serv., 290 De Geofroy v. Riggs, 218 De Sanchez v. Banco Central de Nicaragua, 180 De Wit v. KLM Royal Dutch Airlines, N.V., 213 DelCostello v. International Brotherhood of Teamsters, 386 Democratic Republic of Congo v. Belgium, 377 Dennis v. Sparks, 253 Deutsch v. Turner Corp., 362, 545, 549 Diggs v. Richardson, 218 Doe v. Barrow County, Ga., 238 Doe v. Bolkiah, 199 Doe v. Bush, 340 Doe v. City of Chicago, 235, 236 Doe v. Constant, 15, 198, 238, 413, 438, 452, 475, 483, 516 Doe v. Exxon Mobil Corp., 24, 124, 201, 255, 256, 270, 312, 318, 354, 363, 436 Doe v. Frank, 235 Doe v. Islamic Salvation Front, 16, 155, 166, 192, 236, 237, 245, 246, 386 Doe v. Israel, 339, 372, 424 Doe v. Karadzic, see also Kadic v. Karadzic, 244, 245, 252, 259, 311, 459, 470, 507, 513, 515, 526, 529 Doe v. Liu Qi, 14, 21, 52, 65, 71, 179, 181, 184, 185, 187, 191, 196, 200, 257, 261, 262, 263, 264, 297, 353, 354, 360, 370, 373, 403, 406, 416, 417, 458, 466, 468, 471, 531 Doe v. Lumintang, 251, 447, 466, 470, 512, 513 Doe v. Reddy, 171, 172, 199, 326 Doe v. Saravia, 15, 21, 24, 40, 65, 83, 163, 268, 269, 408, 409, 466, 470, 507, 527, 529 Doe v. The Gap, 103, 243, 326 Doe v. Unocal Corp., see also National Coalition Government of the Union of Burma v. Unocal, Roe v. Unocal, xxi, 15, 18, 45, 19, 93, 119, 121, 124, 126, 171, 172, 204, 236, 237, 243, 250, 253, 265, 266, 268, 274, 276, 278, 279, 310, 312, 316, 319, 323, 324, 326, 352, 411, 415, 434, 435, 443, 446, 461, 475, 476, 488, 489, 493, 497, 498, 500, 501, 502, 503, 508, 530 Doe v. U.S.I.N.S., 236 Doe v. Wal-Mart Stores, Inc., 125, 327 Does I Thru XXIII v. Advanced Textile Corp’n, 235 Dreyfus v. von Finck, 9, 211 Eastern Airline, Inc. v. Floyd, 218 Eastman Kodak Co. v. Kavlin, 179, 265, 274, 315, 397 Edye v. Robertson (The Head Money Cases), 216, 217

596 International Human Rights Litigation in U.S. Courts

Eisenfeld v. Islamic Republic of Iran, 149 El-Fadl v. Central Bank of Jordan, 371 El-Masri v. Tenet, 227, 306 El-Masri v. United States, 485 El-Shifa Pharm. Industrial Co. v. United States, 301 Elliott v. Foufas, 118 Ellsberg v. Mitchell, 305 Elmaghraby v. Ashcroft, 287 Enahoro v. Abubukar, see also Abiola v. Abubakar, 22, 29, 83, 84, 144, 373, 405, 463 Environmental Tectonics Corp., Inc. v. W.S. Kirkpatrick, Inc., 430 Erie Railroad Co. v. Tompkins, 34-5, 38 Estate of Cabello v. Fernandez-Larios, see also Cabello v. Fernandez-Larios, 40, 86, 186, 190, 196, 233, 234, 235, 462 Estate of Domingo v. Republic of the Philippines, 92, 375 Estate of Rodriquez v. Drummond Co., 64, 85, 159, 171, 194, 195, 238, 246, 253, 254, 314, 325, 396, 404, 406 Estates of Unger ex. rel. Strachman v. Palestinian Authority, 394 Evans v. City of Chi., 116 Ex parte Quirin, 573 Ex parte Republic of Peru, 424 Ex parte Young, 296 F. Hoffman-La Roche Ltd. v. Empagran S.A., 296 Fagot Rodriguez v. Republic of Costa Rica, 368, 371 Farmer v. Brennan, 199 Farquhar v. Shelden, 479 Feng Suo Zhou v. Li Peng, 460 Feres v. United States, 332 Figueroa Ruiz v. Alegria, 118 Fila´rtiga v. Pen˜a-Irala, xviii, xix, xxi, xxiii, xxiii, xxiv, xxv, xxix, 1, 2, 3, 6, 7, 8, 9. 10, 11, 12, 13, 16, 17, 20, 22, 27, 29, 30, 31, 32, 35, 37, 38, 39, 41, 43, 46, 47, 48, 49, 55, 56, 57, 58, 60, 61, 68, 69, 70, 78, 79, 80, 81, 82, 105, 120, 123, 139, 169, 176, 187, 210, 211, 247, 251, 296, 311, 340, 344, 350, 351, 353, 371, 391, 411, 413, 433, 441, 463, 466, 470, 510, 524, 525, 526, 527, 528, 537, 563, 564, 570, 571, 572, 573 First National City Bank v. Banco Nacional de Cuba, 108, 423 First National City Bank v. Banco Para El Comercio Exterior de Cuba, 99, 108 Fishman v. A.H. Riise Gift Shop, Inc., 495 Flatow v. Islamic Republic of Iran, 100, 149, 424 Flores v. Southern Peru Copper Corp., 16, 64, 66, 67, 68, 71, 72, 82, 197, 207, 313, 314

Table of Cases

597

Flynt v. Rumsfeld, 302 Ford v. Garcia, 257, 258, 259, 260, 261, 262, 504 Foremost-McKesson, Inc. v. Islamic Republic of Iran, 477 Forti v. Suarez-Mason (Forti I), 13, 40, 48-9, 62, 63, 105, 107, 149, 150, 169, 178, 180, 182, 184, 251, 252, 261, 262, 351, 463, 466, 470, 478, 534, 572, 577, 578 Forti v. Suarez-Mason (Forti II), 49, 61, 62, 63, 71, 168, 169, 184, 197, 199 Foster v. Neilson, 216, 218 Frazer v. Chicago Bridge and Iron, 21, 278 Galu v. SwissAir: Swiss Air Transport Co., 351 Ganguly v. Charles Schwab & Co., Inc., 22 Genocide Case, 156 Gilmore v. The Palestinian Interim Self-Government Authority, 111 Glenn v. First National Bank, 117 Goldwater v. Carter, 548 Gonzales v. O Centro Esprita Beneficente Unio do Vegetal, 190 Gonzalez-Vera v. Kissinger, 288, 303 Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 107 Greenery Rehabilitation Group, Inc. v. Sabol, 477 Greenham Women Against Cruise Missiles v. Reagan, 301 Gross v. German Foundation Industrial Initiative, 418 Gualandi v. Adams, 477 Guccione v. United States, 300 Guidi v. Inter-Cont’l Hotels Corp., 398 Guinto v. Marcos, 204, 212 Gulf Oil Corp. v. Gilbert, 392, 395, 400 Gutierrez de Martinez v. Lamagno, 284, 290, 296 Guzel v. State of Kuwait, 99 H.J. Inc. v. Northwestern Bell Telegraph Co., 115 Haddon v. United States, 294, 295 Hagans v. Lavine, 106 Halberstam v. Welch, 273 Halkin v. Helms, 306 Hamdan v. Rumsfeld, 150, 151, 223, 224, 275, 276, 430 Hamdi v. Rumsfeld, 302, 428, 429 Hamid v. Price Waterhouse, 15, 212, 213 Handel v. Artukovic, 32, 109

598 International Human Rights Litigation in U.S. Courts

Harbury v. Hayden, 287, 292, 299, 304 Harrison v. Potter, 476 Hartford Fire Insurance Co. v. California, 355, 356 Hasbrouck v. Sheet Metal Workers Local, 320 Hawkins v. Comparet-Cassani, 108 Helicopteros Nacionales de Colombia, S.A. v. Hall, 576 Hensley v. Eckerhart, 533 Henton v. Anderson, 297 Hepting v. AT&T, 307 Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 30, 105, 108 Hertz v. Arrendondo, 532 Higgins v. Islamic Republic of Iran, 149 Hilao v. Estate of Marcos, see also In re Estate of Marcos Human Rights Litigation, xxi, 13, 16, 27, 82, 122, 180, 241, 242, 257, 258, 259, 261, 272, 369, 370, 375, 388, 403, 404, 451, 457, 462, 503, 511, 512, 520, 522, 524, 526, 534, 545 Hilton v. Guyot, 67, 355, 580 Hirsh v. State of Israel, 204 Hodgson v. Bowerbank, 41 Holland v. Islamic Republic of Iran, 99, 101 Honig v. Doe, 405, 579 Hostages Cases, 177 Hubbard v. Rubbermaid, Inc., 487 Hunt v. Washington State Apple Advertising Commission, 245 Ibrahim v. Titan Corp., 116, 124, 227, 327, 331, 332, 333 IIT v. Vencap, 3, 9, 48, 213 Illinois v. City of Milwaukee, 42, 105, 108 In re African-American Slave Descendants Litigation, 173, 544, 545, 548, 549 In re Agent Orange Prod. Liability Litigation, 71, 76, 160, 171, 198, 204, 227, 252, 266, 267, 268, 269, 271, 316, 317, 326, 327, 330, 332, 347, 348, 414, 416, 464 In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 234, 575 In re Bridgestone/Firestone, Inc., 396 In re Estate of Marcos Human Rights Litigation, see also Hilao v. Marcos, 13, 19, 20, 32, 40, 43, 58, 107, 139, 141, 149, 169, 241, 242, 259, 296, 297, 350, 351, 369, 370, 371, 374, 391, 434, 456, 462, 503, 510, 521, 535 In re Extradition of Suarez Mason, 199 In re Grand Jury Proceedings, Doe No. 700, 375, 383 In re Guantanamo Detainee Cases, 223, 226 In re Holocaust Victim Assets Litigation, 543

Table of Cases

599

In re Iraq and Afghanistan Detainees Litigation, 281, 287, 289 In re Magnetic Audiotape Antitrust Litigation, 119 In re Marc Rich & Co., 487 In re Maxwell Communication Corp., 358 In re Mr. and Mrs. Doe, 384 In re Nazi Era Cases Against German Defendants Litigation, 425 In re OM Group Sec. Litigation, 497 In re Philippine Nat’l Bank, 535 In re Simon, 354 In re South African Apartheid Litigation, 24, 204, 254, 270, 272, 318, 324, 325, 326, 433 In re Terrorist Attacks II, 89, 93 In re Terrorist Attacks on September 11, 2001, 23, 24, 92, 94, 112, 117, 155, 188, 273, 368, 372 In re Tobacco/Governmental Health Care Costs Litigation, 418 In re Vitamin Antitrust Litigation, 488 In re World War II Era Japanese Forced Labor Litigation, 108, 171, 172, 361, 545 In re Yamashita, 257, 261, 262, 578 Industria Panificadora, S.A. v. United States, 301 INS v. Cardoza-Fonseca, 428 International Shoe Co. v. Washington, 249, 576 Ireland v. United Kingdom, 182, 183 ISI International, Inc. v. Borden Ladner Gervais LLP, 250 Iwanowa v. Ford Motor Co., 167, 172, 173, 338, 356 Jackson v. Metropolitan Edison Co., 253 Jafari v. Islamic Republic of Iran, 210 Jama v. I.N.S., 65, 181, 185, 186, 190, 200, 215, 243, 282, 327, 332, 409 Japan Whaling Association v. American Cetacean Society, 343 Jazini v. Nissan Motor Co., Ltd., 119 Jean v. Dorelien, 22, 390, 403, 408, 409, 457, 533 Jimenez v. Aristeguieta, 350, 370 Jogi v. Voges, 216, 218, 221, 222, 282 Johnson v. Eisentrager, 223 Johnson v. United States, 299 Johnson v. Weinberg, 295 Jones v. Clinton, 375 Joo v. Japan, 345, 548 Jordan v. K. Tashiro, 297

600 International Human Rights Litigation in U.S. Courts

Joseph v. Office of the Consulate General of Nigeria, 99 Jota v. Texaco, Inc., see also Aguinda v. Texaco, 207, 297, 358, 359, 529 Jungquist v. Sheikh Sultan bin Khalifa al Nahya, 367, 371, 372 Kadic v. Karadzic, see also Doe v. Karadzic, xxi, 14, 28, 29, 30, 62, 67, 81, 82, 106, 155, 157, 158, 160, 166, 171, 190, 192, 198, 200, 202, 215, 236, 251, 252, 253, 255, 256, 259, 311, 338, 342, 344, 350, 351, 353, 374, 376, 382, 409, 411, 415, 425, 427, 431, 434, 459, 462, 466, 470, 511, 515, 531, 533 Kamel v. Hill-Rom Co., 392 Kamen v. American Telegraph & Telegraph Co., 477 Kane v. Win, 204 Kasky v. Nike., Inc., 125, 327 Keller v. Central Bank of Nigeria, 367, 371 Kimbro v. Velten, 296 Kiobel v. Royal Dutch Petroleum Co., 22, 144, 145, 150, 151, 164, 179, 192, 193, 196, 197, 211, 313, 316, 418, 419, 463, 480, 498 Klehr v. A.O. Smith Corp., 115 Klieman v. The Palestinian Authority, 453 Kline v. Kaneko, 377 Kline v. Republic of El Salvador, 93 Klinghoffer v. S.N.C. Achille Lauro, 338, 342, 343, 382, 459 Knox v. Palestine Liberation Organization, 111 Kolovrat v. Oregon, 429 Koohi v. United States, 299, 301, 331, 426 Kister v. (American) Lumbermens Mutual Casualty Co., 392, 393 Krieger v. U.S. Department of Justice, 297 Kruman v. Christie’s International PLC, 213 Kuhne v. United States, 299 La Amistad de Rues, 108 Lafontant v. Aristide, 370, 374, 375, 376, 384, 424, 462 Laker Airways, Ltd. v. Pan America World Airways, 487, 488 Landgraf v. USI Film Products, 87, 88, 224, 391, 529 Lathers v. Penguin Industrial, Inc., 328 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 30, 452, 454 Lee v. City of Los Angeles, 454 Letelier v. Republic of Chile, 92 Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 374, 377 Li Weixum v. Bo Xilai, 380

Table of Cases

601

Linde v. Arab Bank, 112, 272, 394 Linder v. Calero-Portocarrero, 202, 348, 484 Linder v. Department of Defense, 485 Linder v. National Sec. Agency, 485 Lindh v. Murphy, 87 Lineen v. Metcalf & Eddy, Inc., 487 Link v. Wabash R.R. Co., 533 Liu v. The Republic of China, 92 Loayza Tamayo Case, 530 Local Division 732, Amalgamated Transit Union v. Metropolitan Atlanta Rapid Transit Authority, 105 Lopes v. Reederei Richard Schroder, 213 Lyman Steel Co. v. Shearson Lehman Brothers, 117 Lyon v. Carey, 294 Maher v. Gagne, 533 Maine v. Thiboutot, 533 Maine v. U.S. Department of Interior, 497 Mallekoote v. Marsh, 293 Marbury v. Madison, 338 Maria v. McElroy, 193 Marootian v. New York Life Insurance Co., 239, 549 Martin v. South Africa, 93 Martinez v. City of Los Angeles, 103, 181, 307 Martinez-Baca v. Suarez-Mason, 13, 107, 180, 534 Matar v. Dichter, 339, 366, 367, 368, 372, 414 Matimak Trading Co. v. Khalily, 431 Maugein v. Newmont Mining Corp., 213, 326 McCulloch v. Sociedad Nacional de Marineros de Honduras, 296 McHugh v. University of Vermont, 297 McKay v. Rockwell International Corp., 329 McKenna v. Fisk, 43, 120 McNeil v. United States, 298 Medcalf v. Kansas, 183 Medellin v. Dretke, 430 Medical Corp. v. McGonigle, 368, 371 Mehinovic v. Vuckovic, 159, 166, 167, 178, 180, 186, 190, 198, 199, 265, 266, 268, 269, 316, 404, 407, 470, 471, 507, 526, 529

602 International Human Rights Litigation in U.S. Courts

Melo v. Hafer, 290, 296, 297 Merrill Lynch, Pierce, Fenner and Smith, Inc. v. ENC Corp., 536 Milliken v. Meyer, 249 Mirmehdi v. Ashcroft, 282 Mitchell v. Lone Star Ammunition, Inc., 329 Mohammad v. Bin Tarraf, 65 Molzof v. United States, 292 Moriarty v. Glueckert Funeral Home, Ltd., 320 Morin v. Nationwide Fed. Credit Union, 479 Morris v. Khadr, 112 Moseley v. Second New St. Paul Baptist Church, 295 Moskovits v. Moskovits, 401 Motorola Credit Corp. v. Uzan, 492 Moxon v. The Fanny, 6, 34 Mujica v. Occidental Petroleum, xxi, 56, 71, 181, 185, 192, 193, 253, 267, 268, 269, 271, 277, 278, 312, 317, 319, 324, 325, 326, 339, 346, 347, 348, 354, 363, 396, 397, 398, 417, 432, 433, 437 Mushikiwabo v. Barayagwiza, 159, 466 Mwani v. Bin Laden and Afghanistan, 94, 96, 139, 188, 250 N. S. Finance Corp. v. Al-Turki, 118, 119 Nasuti v. Scannell, 296 National Coalition Government of the Union of Burma v. Unocal, Inc., see also Doe v. Unocal, 210, 246, 310, 351, 411, 434, 435 National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 431 New York Times Co. v. United States, 302 Nguyen Da Yen v. Kissinger, 8, 180 Nixon v. Fitzgerald, 375 Northrop Corp. v. McDonnell Douglas Corp., 484 O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 357 Ocalan v. Turkey, 151 Oetjen v. Central Leather Co., 423 Old Time Enterprises v. International Coffee Corp., 118 Origet v. Washenaw County, 580 Ortiz v. Fibreboard Corp., 245 Ortiz v. Gramajo, 49 Osborn v. Haley, 290, 293, 297 Owens v. Republic of Sudan, 149, 354

Table of Cases

603

Pacific Mutual Life Insurance Co. v. Haslip, 528 Padilla ex rel. Newman v. Bush, 223 Papa v. United States, 386 Papageorgiou v. Lloyds of London, 7 Paquete Habana, see The Paquete Habana Parratt v. Taylor, 579 Patrickson v. Dole Food Co., 418 Paul v. Avril, 13, 32, 178, 179, 262, 348, 374, 375, 383, 461, 462, 467, 469, 474, 477, 478, 479, 480, 493, 512, 513 Peterson v. Islamic Republic of Iran, 149 Phoenix Consulting, Inc. v. Republic of Angola, 119 Pimentel v. B.N. Dev. Co., Inc., 536 Piper Aircraft Co. v. Reyno, 392, 393, 397, 398 Pravin Banker Associates, Ltd. v. Banco Popular Del Peru, 358 Presbyterian Church of Sudan v. Talisman Energy, Inc., 21, 30, 40, 71, 142, 145, 146, 158, 159, 181, 196, 198, 199, 200, 204, 210, 211, 244, 245, 265, 266, 267, 269, 270, 271, 274, 275, 297, 312, 315, 316, 319, 320, 391, 396, 405, 416, 420, 422, 432, 437, 478, 479, 499, 500, 504 Prevatt v. Islamic Republic of Iran, 101 Price v. Socialist People’s Libyan Arab Jamahiriya, 144, 145, 147, 148, 153 Princz v. Federal Republic of Germany, 91, 93, 547 Procter & Gamble Co. v. Big Apple Industrial Buildings, Inc., 115 Prosecutor v. Aleksovski, 264 Prosecutor v. Bradjanin, 275 Prosecutor v. Delalic, Mucic, Delic, Landzo (The Celebici Case), 263, 264 Prosecutor v. Furundzija, 268, 266, 316, 317 Prosecutor v. Karadzic, 531 Prosecutor v. Kayishema & Ruzindana, 264 Prosecutor v. Simic et al., 193 Prosecutor v. Tadic, 167, 275 PT United Can Co. v. Crown Cork & Seal Co., 392 Pugh v. Socialist People’s Libyan Arab Jamahiriya, 395 Quinn v. Robinson, 161 Quiros de Rapaport v. Suarez-Mason, 13, 534 R. Maganlal & Co. v. M.G. Chemical Co., 394 Ramirez de Arellano v. Weinberger, 301 Randolph v. Budget Rent-A-Car, 92

604 International Human Rights Litigation in U.S. Courts

Rasul v. Bush, 27, 103 Rasul v. Rumsfeld, 190, 287, 288, 293, 294, 298 Redtail Leasing, Inc. v. Bellezza, 117 Reed v. United Transport Union, 157, 386 Regan v. Wald, 426, 427 Reid v. Covert, 289 Rein v. Socialist People’s Libyan Arab Jamahiriya, 96 Reiss v. Societe Centrale du Groupe Des Assurances Nationales, 477 Republic Nat’l Bank of Miami v. United States, 88 Republic of Austria v. Altmann, 360, 426, 428 Republic of Phillipines by the Central Bank of Phillipines v. Marcos, 424 Republic of the Philippines v. Marcos, 107, 108, 114, 344, 353, 361, 370, 456, 488 Respublica v. De Longchamp, 5 Restrepo v. McElroy, 193 Reves v. Ernst & Young, 117 Reyes v. Grijalba, 466, 478 Reynolds v. East Dyer Development Co., 117 Risk v. Norway, 352 Roadway Express, Inc. v. Piper, 533 Roberts v. Corrothers, 31 Robinson v. TCI/US W. Communications, Inc., 119 Rodriguez-Fernandez v. Wilkinson, 177, 180 Roe v. Unocal Corp., see also Doe v. Unocal, 121, 352, 493, 500, 508 Roe v. Wade, 235 Roeder v. Islamic Republic of Iran, 96 Romero v. Drummond Co., Inc., 419 Ross v. Rittenhouse, 37 Rubin v. Hamas-Islamic Resistance Movement, 111 Rutofske v. Norman, 293 Rux v. Republic of Sudan, 96 Salazar v. Islamic Republic of Iran, 152 Saleh v. Titan, 227, 327, 330, 333, 453, 475 Salinas v. United States, 116 Saltany v. Reagan, 374, 449 Sampson v. Federal Republic of Germany & Claims Conf., 170 Sanchez-Espinoza v. Reagan, 297, 371 Sanchez-Llamas v. Oregon, 222

Table of Cases

605

Sarei v. Rio Tinto PLC, 22, 23, 28, 30, 31, 42, 64, 71, 83, 107, 144, 159, 164, 166, 197, 198, 202, 203, 205, 208, 209, 211, 253, 254, 256, 257, 268, 269, 276, 277, 278, 314, 317, 319, 324, 325, 339, 340, 341, 342, 344, 346, 351, 352, 353, 354, 357, 391, 396, 399, 400, 408, 409, 421, 430, 431, 433, 437, 462, 463, 464, 525 Saudi Arabia v. Nelson, 94 Scainetti v. U.S. ex rel. Federal Bureau of Prisons, 313, 329 Scheuer v. Rhodes, 29 Schneider v. Kissinger, 76, 287, 294, 296, 301, 303 Sedima, S.P.R.L. v. Imrex Co., 117 Seth v. British Overseas Airways Corp., 7 Shaffer v. Heitner, 249 Sharon v. Time, Inc., 348, 350, 351 Siderman de Blake v. Republic of Argentina, 91, 202, 350, 351, 352 Simpson v. Socialist People’s Libyan Arab Jamahiriya, 145, 153 Sinaltrainal v. Coca-Cola Co., 194, 253, 254, 277, 315, 322, 325, 326, 404 Six W. Retail Acquisition, Inc. v. Sony Theatre Management Corp., 479 Skeels v. United States, 299 Slater v. Mexican National Railway, 120 Smith v. Federal Reserve Bank of N.Y., 96 Smith v. Socialist People’s Libyan Arab Jamahiriya, 91 Smith v. United States, 287, 298 Smith v. Wade, 509, 526, 528 Snell v. Bell Helicopter Textron, 329 Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 356, 491 Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 487, 490, 491 Sosa v. Alvarez-Machain, xxii, xxix, 2, 3, 5, 7, 16, 18, 19, 21, 25, 27, 28, 33, 34, 35, 36, 37, 38, 39, 42, 43, 47, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 64, 67, 68, 69, 70, 72, 81, 82, 83, 84, 107, 109, 131, 133, 134, 135, 139, 142, 155, 169, 176, 177, 178, 179, 183, 185, 186, 187, 188, 210, 212, 220, 222, 247, 255, 256, 257, 267, 268, 287, 280, 291, 298, 299, 310, 316, 317, 320, 324, 327, 344, 359, 408, 417, 426, 428, 432, 435, 438, 439, 455, 463, 523, 525, 527 Steele v. Bulova Watch Co., 529 Stern v. Islamic Republic of Iran, 149 Stevens v. Griffith, 289 Stoddard v. Bird, 43 Stokes v. Cross, 296 Strawbridge v. Curtiss, 122

606 International Human Rights Litigation in U.S. Courts

Sumitomo Shoji America, Inc. v. Avagliano 429 Supra Med. Corp. v. McGonigle, 368, 371 Surette v. Islamic Republic of Iran, 146, 149 Swierkiewicz v. Sorema N.A., 30 Tachiona v. Mugabe, 40, 142, 144, 145, 181, 182, 194, 196, 204, 253, 406, 467, 526, 529 Tachiona v. United States, 368, 372, 376, 377, 382, 467 Tachiona ex rel. Tachiona v. Mugabe, 467 Taher v. Bush, 224 Talbot v. Jansen, 265, 269, 316, 317 Taveras v. Taveras, 181, 200 Taveras-Lopez v. Reno, 204 Tel-Oren v. Libyan Arab Republic, 5, 6, 13, 27, 58, 60, 78, 82, 109-10, 135, 171, 187, 202, 215, 220, 252, 255, 297, 338, 410, 564, 572 Tenebaum v. Siminoni, 485 Texas Industrial, Inc. v. Radcliff Materials, Inc., 36 Textile Workers of America v. Lincoln Mills, 33 The Antelope, 60 The Charming Betsy, 296 The Greek Case, 184 The Nereide, 36, 105 The Paquete Habana, 10, 36, 58, 60, 62, 67, 71, 105, 108, 302, 429, 514, 573 Third Avenue Associates v. Permanent Mission of the Republic of Zaire to the U.N., 420 Timberland Lumber Co. v. Bank of Am. Nat’l Trust and Sav. Ass’n, 357 Timberline Northwest, Inc. v. Hill, 288 Tobacco II Cases, 125 Todd v. Panjaitan, xxiv, 13, 466 Topo v. Dhir, 45, 501 Torres v. Southern Peru Copper Corp., 108, 361 Trail Smelter Case (U.S. v. Can.), 206 Trajano v. Marcos, 13, 251, 350, 351, 369, 370, 374, 411, 434, 462, 467, 527, 577 Trujillo v. Banco Central del Ecuador, 368, 371 Turkmen v. Ashcroft, 282, 287, 289 Turner Entm’t Co. v. Degeto Film GmbH, 356 TXO Prod. Corp. v. Alliance Resources Corp., 528 Tyrer Case, 183 Underhill v. Hernandez, 349, 352

Table of Cases

607

Ungar v. Palestine Liberation Organization, 111 Ungaro-Benages v. Dresdner Bank, A.G., 338, 347, 359, 361, 425, 431, 547 United Food and Commercial Workers v. Brown Group, 245 United Mine Workers v. Gibbs, 123 United States v. Al-Hamdi, 429 United States v. Alvarado-Torres, 289 United States v. Alvarez-Machain, 18, 219, 429 United States v. Angelilli, 116 United States v. Bailey, 199 United States v. Caro-Quintero, 255 United States v. Diecidue, 116 United States v. Enger, 378 United States v. Feliciano, 519 United States v. Fernandez, 116 United States v. First Nat’l Bank of Chicago, 488 United States v. First Nat’l City Bank, 529 United States v. Fort, 223 United States v. Hudson and Goodwin, 533 United States v. International Bus. Machines Corp., 484 United States v. Kozminski, 171 United States v. Lindh, 223 United States v. List (The Hostage Case), 259 United States v. Locascio, 519 United States v. Matta-Ballesteros, 170 United States v. Nai Fook Li, 429 United States v. Neustadt, 300 United States v. Noriega, 223, 375, 376 United States v. Orleans, 291, 328 United States v. Rauscher, 219 United States v. Reynolds, 305, 485 United States v. Riccobene, 115 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 300 United States v. Schell, 116 United States v. Smith, 10, 51, 52, 67, 133, 135, 183, 283, 287, 288, 292, 514 United States v. Stanley, 332 United States v. Stuart, 429 United States v. von Leeb (The High Command Case), 257, 259

608 International Human Rights Litigation in U.S. Courts

United States v. Yunis, 573 United States v. Zollin, 486 United States ex rel. Touhy v. Ragen, 483, 484 Vakharia v. Swedish Covenant Hospital, 495 Valanga v. Metropolitan Life Insurance, 213 Van Cauwenberghe v. Biard, 396 Van Dardel v. U.S.S.R., 91, 139 Van Tu v. Koster, 465 Vanity Fair Mills, Inc. v. T. Eaton Co., 529 Vanover v. Hantman, 297 Velasco v. Government of Indonesia, 367, 371 Velasquez Rodriguez Case, 181 Verlinden B.V. v. Central Bank of Nigeria, 89, 394, 573, 582, 583 Vieth v. Jubelirer, 341 Virtual Countries v. Republic of South Africa, 89 Visa U.S.A., Inc. v. First Data Corp., 497 Von Dardel v. Union of Soviet Socialist Republics, 572 W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., International, 210, 349, 350, 353 Wagh v. Metris Direct, Inc., 117, 118 Walker v. Jackson Pub. Schs., 115 Ward v. Caulk, 545 Ware v. Hylton, 60 Washington Post Co. v. U.S. Department of State, 349, 420, 427 Watergate II Apartments v. Buffalo Sewer Authority, 579 Wei Ye v. Jiang Zemin, 191, 368, 373, 424, 462 Weinberg v. Johnson, 297 Weiss v. American Jewish Committee, 66, 212 Wells v. Franzen, 183 Westinghouse Electric Corp. v. City of Burlington, Vt., 485 Whiteman v. Dorotheum GmbH & Co., 338, 340, 345, 346, 416, 425, 431 Whitney v. Robertson, 289 Wilkinson v. Austin, 282 Wilson v. Garcia, 233 Winterwerp Case, 177

Table of Cases

609

Wiwa v. Royal Dutch Petroleum, 16, 27, 71, 78, 81, 82, 85, 114, 115, 116, 117, 142, 151, 164, 185, 194, 196, 198, 249, 250, 253, 271, 312, 313, 314, 326, 353, 391, 393, 397, 398, 399, 400, 401, 404, 445, 453, 462, 463, 464, 476, 480, 484, 488, 489, 490, 502, 530 Wong-Opasi v. Tennessee State University, 15, 214 Wood v. United States, 292 Wright v. Linhardt, 288 Wyatt v. Syrian Arab Republic, 98 Xuncax v. Gramajo, xxix, xxv, 14, 16, 32, 37, 40, 41, 46, 49, 50, 52, 63, 71, 86, 88, 108, 109, 123, 134, 149, 155, 159, 169, 178, 179, 180, 181, 184, 185, 187, 192, 193, 195, 196, 197, 232, 233, 234, 235, 236, 262, 370, 391, 407, 442, 444, 445, 448, 453, 461, 465, 466, 467, 469, 474, 475, 476, 509, 525, 527, 528, 529, 533 Yearsley v. W.A. Ross Construction Co., 330 Young v. United States, 387 Youngstown Sheet & Tube Co. v. Sawyer, 302 Yousuf v. Samantar, 236, 482 Zapata v. Quinn, 213 Zicherman v. Korean Air Lines Co., 289 Zubeda v. Ashcroft, 199

INDEX [See also Table of Cases and Table of International Documents]

Abatement, 40-1 Act of state doctrine, 191, 209-11, 278, 296, 325, 327, 349-54, 359-60, 420, 424, 426-7, 430, 531, 576-7 Agency liability, 40, 277, 320 Aiding and abetting liability, xxvii, 21, 23-4, 38, 46, 112, 146-7, 155, 159, 211, 248, 256, 264-74, 276, 311-2, 315-22, 463-4 Aircraft hijacking, 155, 188 Aircraft sabotage, xxx, 94-5, 131, 133, 140-1, 154, 395, 556-7 Alien Tort Act, see Alien Tort Statute Alien Tort Claims Act (ATCA), see Alien Tort Statute Alien Tort Statute (ATS), xxii, xxvii, xxix, 1-4, 17, 25, 27, 32, 41-2, 45, 73, 75, 80, 103, 106, 129, 131-3, 138, 140 actionable violations, 47, 58, 131-205 aiding and abetting liability, 21, 24, 46, 256, 265-71, 276, 316-9, 436, 464 cause of action, 17, 32-36, 73, 75, 80, 101, 103, 132, 385-6 choice of law, 27, 36-41, 127, 385, 523 constitutionality, 27, 41-2 corporate defendants, 23, 249, 309-25, 435, 439, 440, 443 defendants, xxix, 45, 106, 127, 247-333, 415, 439, 461, 515, 523, 526 exhaustion of domestic remedies, 85, 407-9, 454 extraterritoriality, 42-3 forum non conveniens, 391-401 general history of, 3-7 historical paradigms, 51, 131, 133, 134-9 legislative history, 3, 75, 366 plaintiffs, xxii, xxvi, 32, 41, 45, 101, 106, 281, 307, 411, 440-1, 461, 515, 526 post-Filartiga cases, 12-16, 58, 262 post-Sosa cases, 2, 21-24 “practical consequences”, 56-7, 255 rejected violations, 15-16, 205-14 Sosa’s cautionary principles, 54-56

statute of limitations, 76, 385-6 subject matter jurisdiction, 28-31, 103, 106, 219 and Torture Victim Protection Act, xxix, 73, 75, 103, 131-2, 231, 247, 281, 365, 385, 395, 415, 439, 441, 523, 552 treaty violations, 215-27 universal, obligatory and definable standard, 58, 169 widely accepted, clearly defined standard, 2, 21, 28, 50, 54, 56-7, 64, 66, 69, 131, 140, 149, 155-6, 159, 161, 167, 169, 174, 176, 189, 202, 205, 210, 212, 220, 248, 318, 455 Aliens, xxix, 1, 5-9, 28, 31-2, 41, 78, 80-1, 122, 221, 281-2, 397-8, 462, 564, 571-3, 583, 585 as plaintiffs, 1, 5, 6, 16, 25, 32, 41, 45, 81, 221, 231, 397, 564, 571, 574, 583 Al Qaeda, 94, 112, 139, 188 Adequate alternative forum, 392, 394-7, 406 Ambassadors, rights of, 50, 131, 134, 138 see also diplomatic immunity Amicus brief, 3, 20, 42, 55, 79, 112, 224, 271-2, 292, 340, 413-4, 426, 433-5, 437-8, 464 Amnesty International, xxxiii, 240, 396, 439, 500, 507, 563, 570 Anti-Terrorism Act (ATA), xxix, 110-13, 141, 149, 231, 271-2, 385, 394, 439, 464 Apartheid, 24, 162, 203-4, 254-5, 270, 272, 310, 318, 323-6, 359-60, 433 Arbitrary arrest, 19, 53-4, 68-9, 176-7, 181, 185, 192, 205, 307 Arbitrary detention, 14, 23, 50, 52-4, 57, 63-5, 68, 70, 72, 107, 121-2, 164, 166-7, 176-81, 196, 572 Argentina, 91, 202, 350-2, 525 “Arising under” jurisdiction, see subject matter jurisdiction Armed conflict, 162, 165-6, 173, 192, 200, 226, 261, 299, 309, 315, 430, 507 Assassination, 15, 21, 24, 65, 111, 163, 269, 442 611

612 International Human Rights Litigation in U.S. Courts Assembly, peaceful, 193-4 Assets, xxiii, xxvi, 97, 99, 211, 242, 265, 345, 356, 399, 439, 455-7, 473, 475, 480, 533-6, 543, 547 and discovery, 473, 475, 480 and enforcing judgments, 455, 534-6 locating and freezing, 455 Association, see Freedom of Association ATA, see Anti-Terrorism Act Attorneys’ fees, 523, 532-3 ATCA, see Alien Tort Statute ATS, see Alien Tort Statute Authority, xxix, 40-1, 75-6, 80, 83-4, 86-7, 111, 177-8, 259-62, 264, 367-74, 560-2, 565, 567-9, 571-4, 577-9, 581-2 apparent, xxix, 15, 75-6, 86-7, 141, 148, 302, 304, 307, 320, 373-4, 552, 561-2, 565, 568, 571, 577 delegated, 296 foreign, see color of foreign law Avril, Prosper, 13, 375 Baker v. Carr factors, 340-48 Battery, 104, 120-2, 124, 132, 141, 199, 221, 285, 299 Bivens claims, 282 Blackstone, William, 50, 265 Bork, Robert, 17, 572 Bosnia-Herzegovina, 14, 166, 244, 342, 350, 508 Burma, xxi, 94, 127, 210, 246, 310, 323-4, 351-2, 362, 411, 434, 443-4, 475, 489, 500-1 Bush, George H.W., 18, 75, 79, 584 Bush, George W., administration of, 17, 24, 42, 161, 324, 337, 411, 415, 417, 435 Cabello, Zita, 442 Camarena-Salazar, Enrique, 18 Canada, 303, 422, 437, 444 Capital punishment, see death penalty Caravan of Death, 268, 388, 442 Carter, Jimmy, 8, 18, 79, 411 administration of, 79, 411 “Case-specific deference”, 310, 325, 337, 359, 360-1 Casto, William, 1, 5, 32, 37, 60, 107, 139, 221, 525 Center for Constitutional Rights (CCR), xviii, xxii, xxxiii-iv, 8, 224, 304-5, 441 Chemerinsky, Erwin, 39, 232, 337-8 Child labor, 169, 173-4, 226 worst forms of, 173-4, 226 Child soldiers, 226

Chile, 76, 92, 164, 301, 442 China, 14, 65, 92, 191, 236, 255, 327, 345, 373-4, 406, 416, 531 Choice of law, 27, 36, 38-41, 46, 85, 99, 126-7, 234, 257, 320, 327, 345, 361, 373, 385-6, 523-4 CIDT, see cruel, inhuman or degrading treatment Civil law, 267, 320, 527-8 Civil rights, xxxiii, 103, 252, 255, 281-2, 305, 533, 577, 579 Class actions, 229, 238-43, 313, 360, 401, 504, 521-2, 548 Colombia, 194, 254, 277, 312, 314-5, 317, 322-5, 346, 363, 396-7, 406, 419, 432-3, 576 Color of foreign law, 75, 304 Color of law, xxix, 14-5, 46, 75-8, 81, 86-7, 137, 141, 148, 158, 190-1, 251-7, 302-4, 400, 561-2, 565, 577 see also state action Comity, 10, 325, 337, 345, 354-9, 361, 375, 431, 462, 547 Command responsibility, 13-4, 23, 46, 85, 257-64, 451, 454, 504, 506, 512, 519, 578 Common Article Three, see Geneva Conventions Common law, xxvii, 19-21, 33-42, 50-5, 83-5, 104-10, 132-4, 219-21, 233, 248, 256-7, 266-9, 271, 275-7, 316-21, 365-7, 524-7 Compensatory damages, see damages Complaints, 94, 113, 259, 312, 401, 406, 423, 452, 454-5 drafting, 452 filing under seal, 459 service, 441, 458, 459 Complicity liability, 24, 38, 40, 87 Concert, acting in, 14-5, 266, 273, 303-4, 313, 503 Confidentiality, 237, 471, 474, 498-501 Congress, xxii, xxix, 5, 32-6, 41, 80-4, 97, 118, 133-5, 217-20, 223-4, 269-72, 291-2, 408-9, 566-7, 572-3, 580-2, 584-5 Conspiracy, 24, 112, 116, 118, 155-7, 243, 248, 264, 273-6, 317, 319, 520 Constitution, 3, 4, 10-1, 41-2, 103-5, 107, 142, 170, 183, 187, 216-8, 281-2, 284-6, 289, 343, 423-4, 573 Continental Congress, 5 Contract claims, 21, 214

Index Contractors, 124, 227, 229, 291, 311, 317, 327-30, 332, 520 independent, 291, 328, 333 private, 124, 227, 311, 328, 331-2 Copelon, Rhonda, xviii, 201 Corporations, xxii-iv, xxvi, xxix, 2, 15, 23-4, 125-6, 158-60, 247-9, 255-7, 306-7, 309-33, 397-9, 479-81, 513 parents, 313, 320 subsidiaries, 320-1, 481 and the Torture Victim Protection Act, 17, 150, 281, 309, 311, 319, 325, 326, 439 Crimes against Humanity, 2, 14-5, 21-2, 63-5, 157, 161-4, 192, 198, 244, 251-2, 258, 275, 357, 386, 507, 519-20 Cruel, inhuman or degrading punishment (CIDT), 23, 50, 52, 63-5, 68, 70, 76, 163, 181-7, 192, 199, 200, 282, 468 Cruel and unusual punishment, 183 Cuba, 6, 36, 43, 90, 95-6, 99, 100, 105, 108, 188, 289, 349-51, 353, 402, 418, 423, 426 Cultural genocide, see genocide Customary international law, 34-5, 53-4, 66-72, 105-9, 156, 161-2, 164-6, 168-70, 172-4, 177-8, 186, 195-6, 202-4, 215, 265-6, 563-4 Damages, xxii, xxix, 13-4, 17-9, 23-5, 39-41, 75-6, 90-2, 97-9, 141-2, 188-90, 241-2, 290-1, 449-50, 468-70, 508-10, 521-9, 531-2 choice of law, 39-41, 85, 127, 469, 523-4 collecting, 242 compensatory damages, 90, 97, 242, 290, 508, 521-2, 526-7 moral damages, 527 punitive damages, 13, 39, 90, 98-9, 242, 290, 455, 465, 469, 504, 509-10, 513, 521-9, 531 Death penalty, 96, 149, 151, 221 Declaratory judgment, 354, 523, 531 Default judgment, 112, 198, 416, 438, 452, 465-71, 473, 479, 512, 531 Defendants, xxiv-v, xxvii, xxix, 45-7, 111-3, 247-333, 389-91, 399, 400, 414-20, 439-40, 474-82, 487-90, 494-505, 507-8, 529-34 see also aiding and abetting liability, color of law, command responsibility, state action and the ATS, 45, 106, 127, 247, 281, 415, 439, 461, 515, 523, 526

613

corporations, xxix, 2, 17, 23, 216, 249, 257, 309-33, 337, 359, 476, 479 overview, 45, 282, 304, 339, 439 personal jurisdiction, 23, 43, 111-2, 229, 247-51, 253, 265, 273, 376, 466-7, 476, 575 private defendants, 192, 216, 227, 251, 253 pro se defendants, 440, 465 responsibility of higher officials, see command responsibility state and local government officials, 307 and the TVPA, 22, 257, 302, 325 U.S. government and its officials, 16, 87, 283, 288, 289, 412 Degrading treatment, 14, 22-3, 50, 52, 56-7, 59, 63-4, 68, 70, 78, 109, 140, 181-4, 186-7, 199, 200, 581-2 see also cruel, inhuman or degrading treatment Department of Justice, 42, 80, 143, 297, 324, 412-3, 416-7, 419, 434-5, 559, 570, 582-4 Department of State, 61, 70, 79, 90, 175, 177-8, 324, 346, 349, 395, 413, 415-7, 419, 433-4, 436-7, 481-3 Deportation, 8, 162, 164, 166, 193, 478 Depositions, 231, 349, 422, 444-5, 448, 466, 478-9, 481-2, 488-9, 493, 495-6, 498-500, 520-1 Design defects, 328-9, 331 Detainees, xxiii, xxxiv, 22, 54, 103, 153, 167, 177-8, 185, 190, 222-3, 281, 287, 289, 291, 293, 304-5, 428 Detention, see arbitrary detention Diplomatic immunity, see immunity Diplomats, 5, 138-9, 366, 377-9, 381, 424, 435, 566, 576 see also ambassadors, rights of Disappearance, 2, 13-4, 50, 62-3, 70, 86, 104, 121, 162, 167-9, 181, 197, 233, 506, 572, 577-8 enforced, 162, 167-9 Discovery, xxvii, 96, 118-9, 236-7, 305-7, 348-9, 401, 419-21, 436, 439-40, 448, 450-2, 473-83, 485-502, 507-8, 544-5, 559 foreign, 97, 118-20, 349, 401, 419-20, 436, 473-7, 482-3, 485-6, 489-95, 503, 536 and human rights organizations, 481-2, 494, 499-500 jurisdictional, 118-9, 473, 476, 490 and protective orders, 237, 424, 495, 498, 501 third-party, 482, 484, 496

614 International Human Rights Litigation in U.S. Courts Discovery—Cont’d and the U.S. government, 474-6, 482-3 Discrimination, see gender discrimination, racial discrimination, religious discrimination Dismiss, motions to, 31, 114-5, 302, 310, 439-40, 461, 466, 476 Diversity jurisdiction, see subject matter jurisdiction Domestic law claims, see state law claims Domestic remedies, see exhaustion of Due process, 149-50, 196, 249, 282, 538 EarthRights International (ERI), 443 Egypt, 254, 358 El Salvador, xxiii-v, 14-5, 21, 65, 93, 163, 258, 269, 389-90, 507 Emotional distress, intentional infliction of, 120, 122, 124, 185 Enforced disappearance, see disappearance Enforcement of judgments, 97-8, 383, 523, 534, 537 England, 134-5, 138, 375, 398-9, 442, 476 Enslavement, see slavery Enterprise liability, 275, 320-1 Environmental harm, 205-8, 314, 358 Equitable relief, 297, 401, 457, 530 Equitable tolling, 77, 96, 385-90, 454, 464, 543, 545, 557, 566, 569, 580 ERI, see EarthRights International Estates, representatives of victims’, 233, 544 Evidence, 61-2, 67-72, 258-60, 266-8, 348-9, 421, 426-7, 449-51, 457-8, 469-70, 481, 486-7, 490-4, 503-10, 512-4, 517-20 circumstantial, 505-6, 512 documentary, 399, 450, 474, 503, 578 Execution, see summary execution or extrajudicial execution Executive agreements, 345, 362, 425, 427, 547-8 Executive Branch submissions, 411-33 amicus briefs, 42, 55, 79, 414, 426, 433-4, 437-8 statements of interest, 324, 357, 363, 412-3, 415-7, 419, 420-2, 426, 430-2, 434, 436-8, 464, 471 suggestions of immunity, 372, 376-7, 412-3, 424 Exhaustion of administrative remedies, 286, 298 Exhaustion of domestic remedies, 85, 335, 402-3, 407-9, 454

Experts, 48, 62, 71, 169, 407, 448, 451, 455, 469, 474-5, 494, 499, 500, 507, 510-5, 517-9, 527 affidavits, 62, 169, 527 testimony, 474, 494, 499, 507, 510-5, 519 witnesses, 474, 496, 510-1, 519 Expropriation, 91, 105, 108, 209-10, 352, 359, 546 Extermination, 123, 162 Extrajudicial killing, xxx, 47, 75-6, 82-4, 94-5, 131-2, 148-51, 158-9, 195-6, 233-4, 258-60, 271, 552, 561-2, 564-5, 569, 574-7 see also summary execution Extraterritorial, xxx, 42-3, 79, 88, 113, 118-9, 355, 358, 486, 490-1, 529-30, 582 claims, xxx, 42-3, 79, 113, 491 jurisdiction, 42-3, 78-9, 88, 113, 118-9, 358, 486, 529, 582 Federal common law claims, 27, 36, 104, 106, 109, 140, 149, 219 Alien Tort Statute, 25, 27, 106, 140 federal question jurisdiction (§ 1331), 104-8 Federal-question jurisdiction, see subject matter jurisdiction Federal Rules of Civil Procedure (FRCP), 30, 118, 235, 250, 344, 349, 449, 451, 456, 458, 463, 467, 473, 482, 486-8, 490-2 Federal Tort Claims Act (FTCA), 19, 92, 282-3, 292, 327-8 exceptions to waiver of immunity, 285, 298, 331 combatant activities, 285, 299, 331-2 discretionary function, 285, 300, 331 foreign country, 285, 295, 298, 299 intentional torts, 285, 293, 299, 300 statutory claims exception, 286-8 substitution, 285-6, 290-1, 293, 295-7 and equitable relief, 297 and scope of employment 285, 290-7 Filartiga, Joel, xxi Filartiga, Joelito, xvii, xxii, 8, 9, 13 Filartiga, Dolly, xvii, xxiv, 8, 524 Flatow Amendment, 98-101 Forced disappearance, see disappearance Forced exile, 164, 192-3 Forced impregnation, 158, 199, 200 Forced labor, 15, 59, 93, 108, 167, 169, 171-3, 175-6, 199, 210, 243, 253, 279, 311-2, 352, 361 Forced relocation, 192-3, 243 Foreign affairs doctrine, 327, 337, 361-4, 549

Index Foreign judgments, enforcement of, 537-9, 580 Foreign Sovereign Immunities Act (FSIA), xxix, xxx, 16-7, 73, 89-101, 111-2, 131-2, 141, 148, 365-74, 412-3, 477 application to foreign government officials, 98, 365-74, 412 cause of action, 16, 73, 96, 99-101, 103, 132, 149, 385-6 collecting judgments, 97 exceptions, xxx, 89, 90, 93, 99, 103, 546, 566 commercial activities, 93 state sponsors of terrorism, 90, 94-9 instrumentalities of a foreign state, 100-1, 371, 373 Forum non conveniens, 12, 16, 21, 207, 231, 313, 325, 335, 348, 385, 391-401, 406, 462, 468, 476 Franklin, Benjamin, 138 FRAPH, 465, 475, 483-4 Fraud, 15-6, 21, 63, 65, 117-8, 171, 174, 212-3, 323, 359, 539, 549 Freedom of association, 193-4 Freedom of Information Act, 475 FSIA, see Foreign Sovereign Immunities Act FTCA, see Federal Tort Claims Act

615

Historical justice claims, 23, 172, 541, 543-9 Historical paradigms, see Alien Tort Statute Hostage taking, 94-6, 141, 152, 556-7 Hostis humani generis, xxv, 11, 58, 140, 169 Human trafficking, see trafficking

ICC, see International Criminal Court ICTR, see International Criminal Tribunal for Rwanda ICTY, see International Criminal Tribunal for the Former Yugoslavia ILO, see International Labor Organization Immigration and Naturalization Service (INS), 8, 185, 483 Immunity, xxx, 16, 89-95, 98-100, 138-9, 283-5, 290-4, 298-300, 327-8, 330-3, 365-84, 412-5, 424, 462, 476-7, 554-5 common law, 290-1, 323, 327-8, 365-7, 372, 376-7, 412 diplomatic, 16, 138-9, 365-6, 377-84, 413, 424, 466, 566 foreign sovereign, xxx, 16, 23, 89, 91, 95, 99, 111, 141, 365, 371, 373, 395, 412-3, 426, 449, 468 functional, 380, 382 head of state, 365, 370, 374-7, 424, 462, Gender discrimination, 198, 202 566 Gender violence, 198-201 and missions, 365, 380, 382, 576 Geneva Conventions, 136, 140, 150-1, 164-7, officials of international organizations, 365, 192, 222-5, 227, 263, 289, 428, 430, 378, 380-1 565, 574 suggestion of, see executive branch Common Article 3, 150, 165-7, 192 submissions Genocide, xxiii, 2, 14-5, 23, 50, 59, 62-4, 67, waiver of, 91, 283-5, 290, 298, 331, 372, 70, 105, 121, 124, 155-60, 170, 172, 383-4 185, 190, 198-200, 210-1, 215, 239, Income, lost, 450, 508-9, 523, 526 244, 251-2, 255, 275-6, 292, 311, 315, Indonesia, 124, 312, 354, 367, 371, 436, 513 319, 350, 354, 372, 432, 466, 471, Injunction or injunctive relief, 243, 297, 500, 507, 511, 519, 531, 543, 547-9 456-7, 523, 529, 530-1, 535 cultural, 160, 190 preliminary, 456-7, 530 Genocide Convention Implementation Act, 157 Injuries, personal, 92-4, 98, 116, 120, 125-6, Goldsmith, Jack, 34-5 141, 152, 154, 207, 284, 286, 291, Gonzalez Act, 287-8 298, 555-6 Government contractor defense, 291, 327-8, INS, see Immigration and Naturalization 330-3 Service Gramajo, Hector, xxiv-v, 442, 475, 532 Instrumentalities of foreign states, see Foreign Guatemala, xxv, 159, 196, 236, 299, 304, Sovereign Immunities Act 314-5, 442, 444-5, 448, 465, 470, Inter-American Court of Human Rights, 181, 474-5, 509, 525, 532 530 International Chamber of Commerce, 137 Haiti, 374-5, 383-4, 390, 438, 457, 475, International comity, see comity 477-80, 493, 513 International Court of Justice (ICJ), 67-8, 71, Head-of-state immunity, see immunity Hijacking, see airplane hijacking 156, 166, 207, 266, 377, 514

616 International Human Rights Litigation in U.S. Courts International Criminal Court (ICC), xxv, 156, 161, 165, 167-8, 192, 199, 260, 262-3, 319 Statute of, or Rome Statute, 167, 262, 266 International criminal law, 161, 198-9 International Criminal Tribunal for the Former Yugoslavia (ICTY), 156, 161, 269, 317, 471, 531 International Criminal Tribunal for Rwanda (ICTR), 156, 161 International humanitarian law, 151, 164, 201, 275, 511 International Labor Organization (ILO), 173, 226 International law, xxii, xxv-vii, xxix, 1-15, 27-38, 47-54, 57-64, 66-72, 104-10, 131-43, 154-62, 164-74, 193-205, 207-13, 255-7, 265-71, 314-20, 514-5, 573-9 customary law, see customary international law and damages, 24 expert affidavits, 49, 71, 464 experts, 48, 62, 71, 169, 455, 494, 514-5, 527 general principles of, 257, 266, 295, 320, 579 jus cogens norms of, 108, 171-2 proving content of, 61-2, 66-72, 263, 515 scholars, 3, 10, 17, 34, 49, 60-2, 67, 71, 109, 136, 138, 170, 173, 196, 216, 514-5 sources, 11, 36, 38, 61-2, 66-70, 72, 103, 129, 150, 186, 197, 207, 209, 268, 452, 514-5 International Military Tribunal for the Trial of Major War Criminals, 169, 227, 274 International terrorism, see terrorism Interrogatories, 444, 448, 480, 489, 495 Iran, 90, 94-6, 99-101, 146, 149, 152, 188, 210, 424, 431, 477 Ireland, 182-3 Israel, 98, 109, 112, 187, 204, 252, 272, 339, 368, 372, 424, 549

final, 13, 15, 76, 242, 246, 461, 466, 470, 474, 478, 503, 511, 516-7, 534-6, 539, 558 Judiciary Act of 1789, 1, 4, 28, 81, 564, 571 Jurisdiction, see personal jurisdiction, subject matter jurisdiction, universal jurisdiction Jurisdictional, 8, 11, 19, 27-9, 31-4, 77, 79, 88-9, 103, 106-7, 118-9, 132, 140, 287-8, 338, 476 discovery, 118-9, 473, 476-7, 490 facts, 31, 106 Jury, 13-4, 22, 121-2, 258-60, 290, 446, 451, 470, 481-2, 503, 510-1, 513, 515, 517-9, 521-2, 531 instructions, 122, 258-60, 519 trial, 76, 258-60, 290, 393, 446, 455, 457, 470, 508, 515, 517-9, 521-2 Jus cogens norms, 108, 170-2, 201, 203, 269, 278, 351-2, 372-3, 430 Justice Department, see Department of Justice Kennedy School of Government, 442, 444 Killing, xxi, xxx, 47, 75-6, 82-4, 94-5, 131-2, 148-51, 158-9, 195-6, 233-4, 258-60, 271, 552, 561-2, 564-6, 569, 574-7 see also extrajudicial killing, murder, summary execution Kissinger, Henry, 301, 303

Labor, forced or compulsory, see forced labor Law of nations, xxvi, xxix, 1, 4, 5, 7-11, 28-9, 31-3, 35-7, 40-3, 47-8, 51-2, 59, 60, 80-2, 105-7, 134-5, 154-7, 208-15, 570-3 Legislative history, 3, 17, 75, 77-8, 82, 84-7, 150, 233-4, 246, 261, 267, 271-2, 291-2, 366-7, 377-9, 528 Liability, xxiii, xxv, xxvii, 21, 23-4, 40, 86-8, 99, 100, 112-3, 247-9, 251-3, 255-79, 284-8, 294-6, 310-21, 328-32, 463-4, 513-4, 576-8 agency theory of, 276 complicity, 24, 38, 40, 86-7, 229, 264, 310-1 Japan, 172, 343, 345, 360, 427-8, 548 direct, xxiii, 14, 24, 76, 227, 247-8, 268, Joint criminal enterprise, 274-6 314-5, 317, 328, 366, 450, 521 Joint venture, 253, 264, 276-8, 312, 314, indirect, 23, 248, 267-8, 271, 313-9 319-20, 323, 450, 519, 530 joint venture theory of, 277-8 Judgments, xxiii-iv, xxvii, 13-4, 16-9, 67, 90, limited, 50, 90, 115, 238, 241, 244, 275, 97-9, 241-2, 352-3, 383, 439-40, 455-7, 285, 320-1, 369, 577 465-6, 470-1, 522-3, 526-9, 532-9, principal-agent, 320 579-80 see also aiding and abetting liability declaratory, see declaratory judgment Libya, 95-6, 153, 395 enforcing, xxiii, 67, 455, 533-9

Index Maggio, Michael, xvii Marbois Affair, 5, 138-9 Material support to terrorism, 94-5, 112-3, 151, 556 provision of, 94-5, 112-3, 151, 556 MCA, see Military Commissions Act Mental pain or suffering, 142, 144, 552, 562, 569 Mental torture, see torture Military commanders, 258, 263-4, 520 Military Commissions Act (MCA), 144, 224, 229, 283, 289, 304 Mission immunity, see immunity Motion to dismiss, see dismiss, motion to Multinational corporations, see corporations Murder, xvii, xxv, 8, 9, 70, 92, 114-5, 124, 149, 157-8, 162-3, 165-6, 172, 181, 195, 199, 200, 315, 389, 572 see also killing

617

Plaintiffs, xvii, xxii-vii, xxxiii, 111-7, 121-7, 184-8, 206-15, 231-46, 272-9, 312-20, 395-407, 439-57, 463-71, 490-501, 503-13, 515-21, 533-6, 543-9 anonymous, 229, 235-8, 440, 454 and ATA, 112, 231, 394 and ATS, 259 and class actions, see class actions and FSIA, 464 location of, 231-2, 401, 476, 479 nationality of, 9, 231 organizations as, 245-6 Political question doctrine, 12, 23, 57, 79, 187, 229, 283, 300-2, 324-5, 337-49, 358-61, 414-5, 430-3, 546-7 Post-traumatic stress disorder, 146 Preliminary injunction, see injunction Private actors, xxix, 2, 14-5, 24, 46, 125, 158, 187, 192, 201, 217, 247-8, 251-2, 255-6, 271-2, 277, 310-1 National security, 4, 96, 301, 305-6, 414, 483, Prolonged arbitrary detention, see arbitrary 485, 559 detention National Security Agency, 483 Property, xxix, xxx, 6, 90-2, 97, 113, 115-6, Negligence claims, 246, 287 136-7, 158-9, 189, 205-6, 209-12, 254, Nigeria, 89, 99, 126, 137, 192, 213, 235, 301-2, 351-2, 456, 535-6, 554-5 312-4, 321, 367, 371, 394-5, 407, claims, xxx, 73, 90-1, 110, 113-6, 122, 489-90, 573, 582-3 125, 132, 185, 205, 209-12, 298, 342-3, Non-citizens, 11, 45, 281, 304-5 352, 546, 548, 554 Non-state actors, 12, 166, 227, 252, 256-7, destruction, 122, 158, 164, 166, 209-11 434 expropriation, xxx, 91, 209-10, 352 Protective orders, 237, 474, 495, 498, 501 Palestine Liberation Organization (PLO), 12, Punitive damages, 13, 39, 90, 98-9, 242, 290, 111, 338, 382, 459, 564 455, 465, 469, 504, 509-10, 513, Papua New Guinea, 208, 269, 341, 344, 357, 521-9, 531 396, 421, 464 Paraguay, xvii, xxi-iii, 8, 9, 39, 43, 537, 564, Racial discrimination, 70, 202-4, 254, 278, 571 352, 357-8 Pen˜a-Irala, Americo Norberto, 8, 441, 537 Racketeer Influenced and Corrupt Personal injury, 92-4, 98, 116, 120, 125-6, Organizations Act (RICO), 73, 113, 141, 152, 154, 207, 284, 286, 291, 132, 250, 288, 309, 326, 523 298, 555-6 Rape, 136, 145, 158-9, 162, 166, 172, Personal jurisdiction, 1, 9, 12, 23, 43, 111-2, 198-201, 266, 292, 312, 345, 350, 370, 119-20, 229, 247-51, 253, 255, 458, 438, 531 466-7, 476, 554, 575 Reagan, Ronald, administration of, 411, 434 and corporations 249 Religious discrimination, 191-2, 205 and individuals, 249 Religious freedom, 132, 190-2, 231, 288, 293, nationwide (FRCP 4(k)(2)), 250-1 305 Philippines, xxi, 43, 92, 107-8, 114, 172, 212, Remedies, xviii, xxv, xxvii, 33, 37-8, 103-4, 241-2, 344, 353, 361, 368-70, 375, 217-9, 234, 297-8, 402-9, 454, 523-7, 384, 456-7, 522, 534-5 531-3, 552, 558-9, 561, 565-6, 569, Piracy, 50-2, 59, 131, 133-7, 155, 157, 170, 578-80 183, 199, 251, 265, 269, 318 exhaustion of, see exhaustion of domestic defined as robbery on the high seas, 133, remedies 135 Retroactivity, 87, 390-1

618 International Human Rights Litigation in U.S. Courts RICO, see Racketeer Influenced and Corrupt Organizations Act (RICO) Right to life, 148, 151, 176, 193, 195-7, 207-8 Robbery on the high seas, see piracy Romero, Archbishop Oscar, xxv, 15, 21, 65 Rwanda, xxv, xxxiii, 156, 159, 161-2, 262-3, 266

Statute of limitations, 12, 22-3, 40, 76-7, 85, 96, 111, 115, 126, 164, 172-3, 385-91, 454, 464-5, 543-6, 580 Statutory claims exception, see Federal Tort Claims Act Statutory construction, xxvii, 13, 218, 415, 428 Subject-matter jurisdiction, 29, 158, 250 diversity 41 federal question or “arising under”, 10, 29, Safe conducts, 50, 131, 134-5, 137-8 30, 41, 73, 80, 88, 98, 104-10, 122, 216, Saudi Arabia, 92-4, 377 219, 231, 452, 573 Scope, 4, 81, 92, 98, 116, 133-4, 196-7, supplemental, 123-4, 126 240-1, 255-7, 282-7, 290-7, 322, 327-9, Summary execution, 2, 13-4, 22, 50, 63, 77-8, 368-74, 556, 577 82-3, 107, 115, 148, 195-6, 376-7, 506, of authority, 116, 286, 370, 373-4 563, 570-2, 577-8 of employment, 87, 285, 290-7 see also extrajudicial execution Separation of powers, 2, 16, 301, 337, 339, Summary judgment, 15, 19, 31, 121, 124, 341, 343, 345, 347, 349, 351, 353, 126, 200, 310, 315, 440, 449, 461, 355, 357, 359, 361 476, 493, 499, 504 Service of complaints, 441, 458, 459 Supplemental jurisdiction, see subject matter Sexual assaults or sexual violence, 124, 162, jurisdiction 185, 198-99, 200-1, 291-2 Supremacy Clause, 216, 223-4, 289 see also gender violence Systematic violations of human rights, 204 Slave trade, 60, 70, 169-70, 173 Slavery, xxiii, 6, 15, 50, 59, 60, 63, 70, Terrorism, xxix, xxx, 17, 90-1, 94-5, 97-101, 104-5, 114, 160, 162, 169-75, 197, 110, 112-3, 131-3, 136-7, 140-1, 148-9, 154-5, 187-9, 231, 271-2, 385, 394-5 199, 251, 543-6, 548-9 Tort, xxii, xxvii, xxix, 1-4, 6-11, 27-9, 31-2, Somalia, 137, 236 40-3, 45-9, 91-3, 131-5, 212-5, 219-21, Sovereign immunity, 16, 23, 89, 93-5, 99, 276-8, 281-5, 327-32, 523-8, 564, 111, 116, 141, 283-5, 290, 294, 366-7, 571-3 371, 395, 413-4, 546 domestic, xxvii, 15, 25, 37, 120-2, 125, foreign, 23, 89, 93-6, 99, 111, 141, 298, 138, 149, 205, 267, 296, 523, 525-6, 550 367, 370-1, 395, 413, 426, 462, 543-4, intentional, 122, 125, 300, 527 546, 566 Torture, xxii, xxiv, xxvii, xxix, xxx, 9-18, U.S. government, 16, 283, 286, 290, 298, 22-3, 46-50, 63-5, 68-70, 75-88, 131-3, 366, 449, 543 139-48, 162-6, 182, 197-201, 258-60, Soviet Union, 139, 573 561-6, 568-79, 581-2, 584-5 Standing to sue, 40-1, 45-6, 85, 229, 231-3, defined, xxii, xxix, 2, 49, 52, 59, 63, 65, 245-6, 447, 543-4 69, 79, 95, 131-3, 140, 143, 161, 165, State action, xxix, 14-5, 87, 125, 133, 137, 182, 556-7 158, 171, 191, 204, 229, 251-7, 270-1, federal statute criminalizing, 144 310-1, 362, 454, 463 mental, 64, 140-4, 146-8, 182, 185, 505, private defendants, 192, 251, 253 552, 562, 565, 569, 575 State Department, see Department of State physical, 11, 65, 141-8, 162, 178, 182, 185, State law claims, 16, 41, 107-8, 122-4, 126-7, 450, 506, 509, 552, 562, 565, 569-71, 132, 141, 200, 231, 310, 326-7, 361, 575 363-4, 385-6, 452, 548-9 Torture Victim Protection Act (TVPA), xxix, State sponsors of terrorism exception, see 16, 22, 46, 73, 75-88, 95, 131-2, 148, Foreign Sovereign Immunities Act, 414-5, 552, 561, 568 exceptions and Alien Tort Statute, 73, 75, 103, 131-2, Statement of interest, see executive branch 231, 247, 281, 365, 385, 395, 415, 439, submissions 441, 523, 552

Index and corporations, 17, 150, 281, 309, 311, 319, 325, 326, 439 color of foreign law requirement, 75 defendants, xxix, 16, 22, 45, 81, 86-7, 247, 281, 325, 385, 415, 439, 523, 546 definitions, 76, 85, 131, 141, 148, 268, 528 of torture, 141, 148 of extrajudicial execution, 16, 76-7, 83, 85-6, 133, 259, 303, 366 exhaustion of remedies, 22, 552, 561, 569, 580 House Report on, 60, 143, 377, 387, 402, 528 plaintiffs, 16, 22, 46, 77, 84, 101, 148, 281, 405, 439-41, 521, 546 and punitive damages, 523 retroactivity, 87, 390-1 Senate Report on, 75, 78, 80, 261, 351, 366, 378, 387, 403-5, 568 statute of limitations, 22, 76-7, 85, 385-6, 545-6, 552, 561, 580 text of, and related documents, 552-3, 561-585 and U.S. government defendants, 87, 283, 288, 289 Trafficking, 114, 132-3, 169, 171, 173-6, 199, 231, 501 Trafficking Victims Protection Act, 171, 176, 231 Transitory tort, doctrine of, 43, 120 Treaties, xxvii, xxxi, 1, 28-9, 47-8, 59, 67-9, 104-5, 129, 131-2, 173, 186-7, 215-27, 289, 344-5, 429-30, 537 bilateral, 219, 487, 490, 492, 494, 537 extradition, 219 non-self-executing, 68-9, 215-7, 220 self-executing, 68-9, 215-20, 222, 226, 289 Treaty prong of Alien Tort Statute, see Alien Tort Statute TVPA, see Torture Victim Protection Act

619

United Kingdom, 182-3 United Nations, 7, 68, 175, 177, 182, 206, 309, 378, 380-3, 507, 561, 576-7, 581, 584 Universal, obligatory and definable standard, see Alien Tort Statute Universal jurisdiction, xxvi, 136, 156-7, 169, 174, 573 Victims, xxiii-iv, 13-4, 77-9, 96-7, 165-8, 171-2, 175-6, 231-4, 242-4, 345-6, 441-8, 505-8, 516-7, 522, 543-4, 563-5, 574-5 deceased, 46, 445, 447, 522, 543 beneficiaries of, 447 estate of, legal representatives of 233, 544 Videotaped testimony, 518 Visas, 516 War crimes, xxii, 2, 14-5, 62-3, 157-8, 161, 164-7, 198, 210-1, 251-2, 263, 275, 344, 350-1, 357, 379, 507, 578 Weiss, Peter, xviii Westfall Act, 87, 284, 286, 290-3, 295, 297, 307 Witnesses, 138, 184, 399, 450, 458, 474, 476-7, 479-81, 486-9, 494-6, 498-9, 503-6, 509-11, 515-9, 558, 583 experts, 474, 496, 510-1, 519 Work product doctrine, 497 Wrongful death, 46, 75, 85-6, 88, 120-2, 124-6, 132, 148-9, 152, 233-5, 386, 531, 552, 561, 565, 575 Yugoslavia, xxv, xxxiii, 14, 156, 161-2, 199, 262-3, 266, 269, 317, 471, 508, 511, 531