In a new rebuff to the administration of Pres. George W. Bush, a 6-3 majority of the U.S. Supreme Court ruled Tuesday that a 215-year-old anti-piracy law can continue to be used by foreign victims of serious human rights abuses access to U.S. courts for redress.
Although the majority decided that the abduction of a Mexican doctor who was delivered into U.S. custody by a bounty hunter to stand trial for the torture/killing of a U.S. drug agent 14 years ago did not rise to the kind of abuse that the 1789 Alien Tort Claims Act (ATCA) was meant to cover, it also rejected arguments by the administration and multinational corporations that the law should not provide victims of serious abuses with the right to sue for damages in U.S. courts.
“Today the Supreme Court reaffirmed that U.S. courts will remain open to those who suffer torture and other terrible human rights abuses that violate international law,” said Eric Biel, the deputy director of the Washington office of Human Rights First (HRF), formerly known as the Lawyers Committee for Human Rights. “Through ATCA, victims of serious human rights violations will continue to have their day in court.”
The U.S. section of Amnesty International (AIUSA) also praised the ruling, noting that the Court recognized that ATCA still allows suits for violations of international norms that are “specific, universal, and obligatory.”
The Court’s opinion, it said, strongly implies that abuses such as war crimes, crimes against humanity, torture, summary killings, and prolonged arbitrary detention and slavery are likely to meet the Court’s standards as “norms of customary law.”
ATCA, which was enacted by the very first U.S. Congress as a tool to fight piracy on the high seas, permits non-citizens to sue foreign and domestic individuals or companies found on U.S. territory for abuses “committed in violation of the law of nations or a treaty of the United States,” even if those abuses were committed overseas.
The Act languished for two centuries, but, since 1980, its has been used successfully by victims of abuses committed by foreign governments and militaries overseas against individual defendants who were served with notice while living or visiting in the United States.
The first case was brought by the father and sister of Joel Filartiga, a 17-year-old Paraguayan who was kidnapped and tortured to death by a Paraguayan police officer who subsequently came to the U.S.
In that case, an appeals court ruled that ATCA permitted victims to pursue claims based on serious violations of international human rights law. “For the purposes of civil liability,” the court ruled, “the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.”
Subsequent cases have been brought against national leaders, such as former Philippine President Ferdinand Marcos, and senior army officers from Guatemala, Indonesia, Argentina, Ethiopia, and El Salvador among other countries. While damages have been awarded in almost all such cases, they have rarely been collected, primarily because defendants fled the United States after they received legal service.
Attorneys began bringing cases against U.S. and foreign corporations usually involving alleged abuses committed by foreign armies or police that were providing security for the companies under ATCA in 1993. About 25 such cases have since been filed. Although most of them have been dismissed by the trial courts, some are working their way up the federal judiciary on appeal, although none involving corporate defendants has yet been heard by the Supreme Court.
The most successful have been brought by survivors of the Nazi Holocaust against foreign companies and banks that rejected their efforts at recovering their money or insurance claims after World War Two. While none of these ever reached the trial stage, they helped induce Swiss banks to negotiate settlements worth more than $1 billion dollars.
While the early lawsuits in the 1980s and early 1990s against foreign individuals provoked little controversy, actions brought under ATCA against corporations mostly energy and mining companies provoked a strong backlash from the private sector and ultimately the Bush administration.
Last year, Attorney-General John Ashcroft asked a federal appeals court to effectively nullify ATCA when it filed a “friend of the court” brief on behalf of the California-based Unocal company in a civil action brought by Burmese villagers who claimed that the company was responsible for serious abuses committed by army troops who provided security for a company project.
In its brief, the Justice Department argued that ATCA could not be used as a basis to file civil cases; that the “law of nations” covered by ATCA did not include international human rights or other treaties enacted since 1789; and that abuses committed outside the U.S. should be covered by the law.
“Although (ATCA) is somewhat of a historical relic today, that is no basis for transforming it into an untethered grant of authority to the courts to establish and enforce (through money-damage actions) precepts of international law regarding disputes arising in foreign countries,” the brief argued.
It also warned that the use of ATCA “bears serious implications for our current war against terrorism, and permits (ATCA claims) to be easily asserted against our allies in that war,” potentially interfering with important U.S. foreign policy interests.
At the same time, the associations of multinational companies, such as the National Foreign Trade Council (NFTC) and the U.S. Chamber of Commerce, also filed briefs with the courts and launched a public-relations campaign against ATCA, arguing, as a recent NFTC ad published in the New York Times put it, that it “discourages foreign investment permits suits (challenging) conduct that U.S. corporations do not and cannot control (and) enables foreigners to sue companies for violations of ‘international agreements’ to which the U.S. itself does not subscribe.”
The case decided Tuesday was the first ever to reach the Supreme Court and thus attracted similar briefs by business and the Justice Department, as well as human rights and other groups who support ATCA. The case itself, however, titled Sosa v. Alavarez-Machain, did not deal directly with a corporate defendant.
It was based rather on the 1990 kidnapping by a former Mexican policeman, Jose Francisco Sosa, of Dr. Humberto Alvarez-Machain, whom the Drug Enforcement Administration (DEA) accused of helping kill one of its agents. Citing the methods by which Alvarez-Machain was delivered to U.S. custody, a trial judge dismissed the case against him in 1992. The doctor then sued Sosa in federal court under ATCA, winning a 25,000-dollar judgement that was sustained by the Ninth Circuit of Appeals.
The question before the Supreme Court Tuesday was whether the appeals court ruling was correct.
Writing a 45-page opinion on behalf of the majority, Justice David Souter ruled that the abuse of arbitrary arrest and detention suffered by Alvarez-Machain “violate(d) no norm of customary international law so well defined as to support the creation of a federal remedy.”
But, at the same time, the majority rejected the administration’s arguments that would have rendered the ATCA meaningless by reaffirming that it does indeed provide jurisdiction for “the modest number of international law violations with a potential for personal liability.”
“The Bush administration wanted to gut the law,” said Joanne Mariner of Human Rights Watch (HRW), “but the Court refused to go along.”
“The Supreme Court sent a clear message today to the Bush administration and multinational corporations that they cannot ignore international human rights law,” said Jennie Green, a senior attorney for the Center for Constitutional Rights, a group that has successfully brought a number of cases under ATCA and is currently using the Act to sue private contractors implicated in the Abu Ghraib prison abuses.
“The Court has rejected efforts to eliminate the most important law that gives human rights victims their day in court,” she said.
Green also stressed that the Court majority noted explicitly in Monday’s decision that foreign detainees held at the U.S. naval base in Guantanamo Bay, Cuba, could pursue claims under ATCA. “The Court’s decision in yesterday’s case and today’s puts the Alien Tort Claims Act on solid ground,” she said.
Robin Conrad, who handles litigation for the U.S. Chamber of Commerce, told IPS that Tuesday’s decision constituted at least a partial victory for her organization, in that Souter’s opinion stressed that courts should be cautious in hearing cases under ATCA.
“The Court is suggesting a high bar for [recognizing] new causes of action that weren’t recognized in the 18th century,” she said, adding that “suits alleging environmental harm, for example, may well be thrown out right away.”
“The Court was not so definitive that you can predict how pending cases will go,” she said. “Courts will have to decide on a case-by-case basis.”
HRW’s Mariner agreed, suggesting, for example, that ATCA will be unlikely to be read in the future as providing jurisdiction only for particularly serious rights abuses, such as war crimes, torture, and crimes against humanity.
“It’s not a clear victory, but overall it looks good because the Court preserved the core of the law as a tool for accountability in serious human rights cases,” she said.
(Inter Press Service)