CIVIL LIABILITY FOR ACTS OF TORTURE
IN U.S. COURTS
Prepared for the Center for Legal and Social Studies (CELS) by Simpson Thacher & Bartlett LLP in
collaboration with Madeleine Schachter, Vice President and Deputy General Counsel, Hachette Book Group
USA, Inc. and David E. McCraw, Senior Counsel, The New York Times Co., as part of a pro bono project
coordinated by the The Cyrus R. Vance Center for International Justice Initiatives
JUNE 20, 2006
CIVIL LIABILITY FOR ACTS OF TORTURE IN U.S. COURTS
I.
INTRODUCTION..................................................................................................... 8
II. THE STATUTORY FRAMEWORK ..................................................................... 8
THE TORTURE VICTIM PROTECTION ACT.................................................................................. 9
THE ALIEN TORT ACT ............................................................................................................. 10
Definition and Applicability ............................................................................................... 10
State Action and the ATA ................................................................................................... 14
III. OTHER JURISDICTIONAL BASES IN THE U.S. ............................................ 18
TORT JURISDICTION ................................................................................................................ 18
28 U.S.C. § 1331 .................................................................................................................... 20
18 U.S.C. § 1962: RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (RICO) .......... 21
IV. DEFENSES AND OTHER IMPEDIMENTS TO SUCCESSFUL SUITS ........ 24
DEFINING TORTURE ................................................................................................................ 24
STATUTES OF LIMITATION ...................................................................................................... 24
THE FOREIGN AFFAIRS DOCTRINE .......................................................................................... 26
PERSONAL JURISDICTION ........................................................................................................ 27
FORUM NON CONVENIENS........................................................................................................ 27
ABSTENTION ISSUES ............................................................................................................... 29
Act of State Doctrine .......................................................................................................... 29
Principles of International Comity .................................................................................... 31
CHOICE OF LAW ...................................................................................................................... 32
Choice of Law in State Cases............................................................................................. 35
FOREIGN SOVEREIGN IMMUNITIES ACT DEFENSES ................................................................. 35
V.
LOOKING AHEAD: CHANGES IN THE LANDSCAPE ................................. 36
POTENTIAL REFORM OF THE ATA AND EXECUTIVE CONTROL OVER INTERNATIONAL LAW .. 36
VI. A CASE-BY-CASE SURVEY OF SUITS AGAINST NON-STATE ACTORS IN
U.S. COURTS .......................................................................................................... 38
ALDANA V. DEL MONTE FRESH PRODUCE, N.A., INC. ............................................................ 38
2
BIGIO V. THE COCA-COLA CO. .............................................................................................. 40
KADIĆ V. KARADŽIĆ ................................................................................................................. 45
THE PRESBYTERIAN CHURCH OF SUDAN V. TALISMAN ENERGY, INC. .......................................... 47
SOSA V. ALVAREZ-MACHAIN ..................................................................................................... 50
IN RE SOUTH AFRICAN APARTHEID LITIGATION ......................................................................... 51
DOE I V. EXXON MOBIL CORPORATION ..................................................................................... 54
VII. CONCLUSION ....................................................................................................... 57
3
TABLE OF AUTHORITIES
Cases
Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th
Cir. 2005) ........................................................................................................................ passim
Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516
(2d Cir. 1985) ......................................................................................................................... 31
Allstate Life Ins. Co. v. Linter Group, Ltd., 994 F.2d 996 (2d Cir. 1993) ................................. 32
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003)................................................................... 26
Banco Nacional de Cuba v. Chemical Bank New York Trust Co., 822
F.2d 230 (2d Cir. 1987) ......................................................................................................... 29
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ............................................. 29, 31
Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000) ........................................................ passim
Braka v. Bancomer, S.N.C., 762 F.2d 222 (2d Cir. 1985) ......................................................... 31
Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1322 (N.D. Ga. 2002) .......................... 17, 25, 40
Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004) ...................................................................... 24
Collett v. Socialist Peoples’ Libyan Arab Jamahiriya, 362 F. Supp. 2d
230 (D.D.C. 2005) ................................................................................................................. 25
Dennis v. Sparks, 449 U.S. at 27.......................................................................................... 10, 17
Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005) ....................................... passim
Doe I v. Unocal, 395 F.3d 932 (9th Cir. 2002) ................................................................... passim
Doe v. Exxon Mobil, Civil Action No. 01-1357 (LFO) (D.D.C. March 2,
2006) ................................................................................................................................ 26, 38
Doe v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997) ....................................................... 10, 23, 48
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) ................................................ 8, 20, 48, 51
Hilton v. Guyot, 159 U.S. 113 (1895) ........................................................................................ 32
Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir. 1977) ................................................................ 29
In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467 (9th Cir.
1994) .......................................................................................................................... 14, 24, 51
In re Maxwell Communication Corp., 93 F.3d 1036 (2d Cir. 1996) ......................................... 32
4
In re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y.
2004) ............................................................................................................................... passim
In Re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d
at 1180.................................................................................................................................... 25
International Shoe Co. v. State of Washington, 326 U.S. 310 (1945) ....................................... 27
Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) .................................................................. 25, 26
Kadić v. Karadžić, 70 F.3d 232, 243-44 (2d Cir. 1995) ..................................................... passim
Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1992) .......................................................... 30
Milliken v. Meyer, 311 U.S. 457 (1940) .................................................................................... 27
Papa v. United States, 281 F.3d 1004 (9th Cir. 2002) ......................................................... 14, 25
Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d
289, 337 (S.D.N.Y. 2003) ............................................................................................... passim
Procter & Gamble Co. v. Big Apple Industrial Bldgs., 879 F.2d 10 (2d
Cir. 1989) ............................................................................................................................... 21
Ricaud v. American Metal Co., 246 U.S. 304 (1918) ................................................................ 29
Saudi Arabia v. Nelson, 507 U.S. 349 (1993)............................................................................ 36
Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985) .......................................................... 21
Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir.
1992) ................................................................................................................................ 13, 29
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).................................................................. passim
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) .............................. 14, 20, 21
The Paquete Habana, 175 U.S. 677 (1900) ............................................................................... 20
Underhill v. Hernández, 168 U.S. 250 (1897) ........................................................................... 29
United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) .............................................. 13
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493
U.S. 400 (1990) ................................................................................................................ 29, 31
Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 3293, 2002 U.S. Dist.
Lexis 3293 (S.D.N.Y. 2002) ........................................................................................... passim
Statutes
18 U.S.C. § 1962(c) (2002) ........................................................................................................ 22
5
28 U.S.C. § 1330 (2006) ............................................................................................................ 38
28 U.S.C. § 1331 (2006) ............................................................................................................ 21
28 U.S.C. §1602 (2006) ............................................................................................................. 38
29 U.S.C. § 1605(a) (2006) ........................................................................................................ 38
42 U.S.C. § 1983 (2006) ............................................................................................................ 16
8 U.S.C. § 1231 (2006) .............................................................................................................. 26
Alien Tort Claims Act (ATA), 28 U.S.C. § 1350 (2006) .......................................... 8, 10, 18, 27
G.A. Res. 39/46, U.N. GAOR, Supp. No. 51, U.N. Doc. A/39/51 (1984),
reprinted in 23 I.L.M. 1027 ............................................................................................. 26, 27
Restatement (Second) of Conflict of Laws, §145 ....................................................................... 21
Restatement (Second) of Torts § 876 (1979).............................................................................. 48
Restatement (Third) of the Foreign Relations Law of the United States §
702 (1987) .............................................................................................................................. 13
Other Authorities
Andrew Clapham, Human Rights Obligations of Non-State Actors 253
(Academy of European Law European University Institute ed., 2006) ........................... 16, 17
Beth Stephens, “Translating Filártiga: A Comparative and International
Law Analysis of Domestic Remedies for International Human Rights
Violations,” 27 Yale Journal of International Law 1, 31-32 (2002) ...................................... 19
Beth Stephens, “Upsetting Checks and Balances: The Bush
Administration’s Efforts to Limit Human Rights Litigation,” 17 Harv.
Hum. Rts. J. 169, 176 (2004) ..................................................................................... 11, 39, 40
Black's Law Dictionary 822 (7th ed. 1999) ............................................................................... 12
Gary Born, International Civil Litigation in United States Courts 63536, 632-33 (3rd ed., 1996) ...................................................................................................... 21
ICTR-96-13-T (Jan. 27, 2000) ................................................................................................... 47
ICTY-94-1, ¶ 688 (May 7, 1997) ............................................................................................... 47
IT-95-17/1-T (Dec. 10, 1998) .................................................................................................... 47
Kenneth Roth, U.S. Hypocrisy in Indonesia, Int’l Herald Tribune,
August 14, 2002, at 4 ............................................................................................................. 41
6
Letter from William H. Taft, IV, Legal Adviser, U.S. Dep’t. of State, to
Judge Louis F. Oberdorfer, July 29, 2002 at 3 ...................................................................... 41
M. Gibney and R.D. Emerick, “The Extraterritorial Application of
United States Law and the Protection of Human Rights: Holding
Multinational Corporations to Domestic and International Standards,”
10 TEMPLE INT’L AND COMP. L.J. 123 (1996).......................................................................... 8
S. 1874, 109th Cong. (1st Sess. 2005) ......................................................................................... 40
S. Rep. No. 102–249, at 11 (1991) ............................................................................................ 27
Saman Zia-Zarifi, “Suing Multinational Corporations in the U.S. for
Violating International Law,” 4 U.C.L.A. J. IL & FA 81, 149 (1999) .................................. 17
Sarah Joseph, Corporations and Transnational Human Rights Litigation
(2004) ................................................................................................................... 13, 19, 20, 22
Slobodan Lekic, “Exxon: Torture Suit Sets Bad Precedent,” Associated
Press, March 8, 2006, available at
http://www.usatoday.com/money/industries/energy/2006-03-08exxon-indonesia-precedent_x.htm (last visited June 8, 2006) ............................................... 40
Universal Declaration of Human Rights, G.A. Res. 217(A) III (1948)
(banning forced labor); Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, and
Charter of the International Military Tribunal, Aug. 8, 1945, art. 6, 82
U.N.T.S. 280 .......................................................................................................................... 14
7
CIVIL LIABILITY FOR ACTS OF TORTURE IN U.S. COURTS
I.
INTRODUCTION
For over twenty-five years, victims have utilized the United States court system to hold
perpetrators responsible for acts of torture and other human rights violations committed
internationally.1 The lack of redress available in many countries currently plagued with
political unrest, corruption or engulfed in war contributes to the United States’ position as a
critical forum to provide victims redress against perpetrators of heinous crimes that may
otherwise be beyond the reach of justice.
Although United States courts provide a means to hold perpetrators accountable for acts
of torture committed internationally, claims must be crafted carefully to fit within categories of
violations that have been shaped by statute and judicial interpretation over time. The purpose
of this survey is to review the framework of potential theories of liability, supported by
statutory and non-statutory jurisdiction, underlying the utility of U.S. courts in the fight against
international acts of torture committed by non-governmental (non-state) actors. This
framework is supplemented further by the decisions of U.S. courts which continue to shape the
framework into what it is today. In doing so, we hope to help identify the most effective
means to address human rights violations in U.S. courts.
II.
THE STATUTORY FRAMEWORK
Plaintiffs have principally relied on two civil statutes to sue non-state actors in the
United States for acts of torture, forced labor, crimes against humanity and similar wrongdoing
committed abroad. Recent decisions suggest that a claim is more likely to be successful if it is
1
See Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Dolly and Joel Filártiga sued a former Paraguayan
police inspector-general for torturing and killing a family member under the Alien Tort Claims Act (ATA) and
became the first successful plaintiffs to sue under the statute in a U.S. court. The holding granted aliens a right to
sue in tort under the ATA, 28 U.S.C. § 1350 (2006), for certain egregious human rights violations and arguably
rebutted the presumption against extraterritorial application of U.S. statutes. See, e.g. M. Gibney and R.D.
Emerick, “The Extraterritorial Application of United States Law and the Protection of Human Rights: Holding
Multinational Corporations to Domestic and International Standards,” 10 T EMPLE INT’L AND COMP. L.J. 123
(1996).
8
alleged that the government was also involved in the commission of the wrongful act and that
courts have been increasingly reluctant to construe the purview of these statutes beyond their
textual boundaries to encompass torts that are not well-established violations of international
law.
The Torture Victim Protection Act
The Torture Victim Protection Act, codified as a note at 28 U.S.C. § 1350, requires
state action and is limited to statutorily defined acts of torture and extra-judicial killing.2 The
statute’s text specifically defines torture as:
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 some purposes as obtaining from that
individual or a third person information or a confession, punishing that individual for
an act that individual or 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.3
“Mental pain or suffering” is defined further as:
prolonged mental harm caused by or resulting from –the intentional infliction or
threatened infliction of severe physical pain or suffering; 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; the
threat of imminent death; or 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 sense of personality.4
2
See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).
3
Section 3(b), 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350) (Historical and Statutory Notes).
4
Id.
9
The statute specifies that to be culpable, the defendant must have acted “under actual or
apparent authority, or color of law, of any foreign nation.”5 Under the majority view, the
conduct of non-state actors may fall within statute’s purview only if their conduct meets the
standard used in claims asserted under 42 U.S.C. § 1983; that is, when they are “willful
participant[s] in joint action with the State or its agents.”6 The “joint action” standard is met
“where there is a substantial degree of cooperation between the state and private actors in
effecting the deprivation of rights.”7 Thus, private actors who successfully conspired to bribe a
judge were deemed liable as state actors under 42 U.S.C. § 1983 despite protestations of
judicial immunity.8 Under the joint action test, courts examine whether state officials and
private parties acted in concert to effect a particular deprivation of constitutional rights.
The Alien Tort Act
Definition and Applicability
This statute envisages torture as conduct “committed in violation of the laws of
nations.”9 The U.S. Supreme Court has stated that this should be determined
where there is no treaty, and no controlling executive or legislative act or
judicial decision [by] 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.10
5
28 U.S.C. § 1350.
6
Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 3293, 2002 U.S. Dist. Lexis 3293 at *40 (S.D.N.Y. 2002)
(quoting Dennis v. Sparks, 449 U.S. 24, 27–28 (1980)).
7
Id. (quoting Doe v. Unocal, 963 F. Supp. 880, 891 (C.D. Cal. 1997)).
8
See id.
9
28 U.S.C. § 1350 (2005).
10
Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) (citing The Paquete Habana, 175 U.S. 677, 700 (1900)).
10
To petition the U.S. courts for relief under the statute, a plaintiff must be: (1) an alien
(2) suing for a tort that was (3) committed in violation of international law.11 For a suit to be
successful, however, plaintiff must (a) prove that the human rights violation in question was an
egregious, and perhaps jus cogens (as described below) violation; (b) prove that the defendant
is subject to the personal jurisdiction of the court and not immune from suit; and (c) satisfy the
procedural requirements of standing, the statute of limitations and forum non conveniens.12
Defining a “Violation of the Laws of Nations”
Torture is generally considered conduct “committed in violation of the laws of
nations,”13 but what constitutes a violation of international law has been interpreted by
decisions of U.S. courts to include a range of conduct. The scope of the Alien Tort Act – in
particular, what constitutes a violation of international law – remains largely unsettled,
although a recent U.S. Supreme Court decision provided some guidance as to the breadth of
conduct capable of triggering ATA liability. In Sosa v. Alvarez-Machain,14 the Supreme Court
warned district courts against broadly expanding the types of causes of action cognizable under
the act. The Court noted that at the time the First Congress enacted the statute it encompassed
three primary offenses: violation of safe conduct, infringement on the rights of ambassadors,
and piracy.15 While the Court recognized that the Act could encompass newer torts, it held that
the courts should still 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 specificity
comparable to the features of the 18th century paradigms we have recognized.”16 The "law of
11
See Aldana v. Del Monte Fresh Produce, 416 F.3d at 1246.
12
Beth Stephens, “Upsetting Checks and Balances: The Bush Administration’s Efforts to Limit Human Rights
Litigation,” 17 Harv. Hum. Rts. J. 169, 176 (2004).
13
See Sosa, 542 U.S. at 728 (stating that “[i]t is true that a clear mandate appears in the Torture Victim Protection
Act of 1991 106 Stat 73, providing authority that “establish[es] an unambiguous and modern basis for federal
claims of torture and extrajudicial killing” (citation omitted)).
14
542 U.S. 692 (2004).
15
See id.
16
Id. at 725.
11
nations" has been defined as "the law of international relations, embracing not only nations but
also … individuals (such as those who invoke their human rights or commit war crimes)."17
The Supreme Court’s test left the lower courts with a great deal of flexibility to refine
the scope of the Act. In In Re South African Apartheid Litig.,18 the court stated that “[w]hile it
would have been unquestionably preferable for the lower federal courts if the Supreme Court
had created a bright-line rule that limited [the Alien Tort Act] to those violations of
international law clearly recognized at the time of its enactment, the Supreme Court left the
door at least slightly ajar for the federal courts to apply the statute to a narrow and limited class
of international law violations beyond those well-recognized at that time.”19 Some federal
courts have taken more liberty than others in recognizing causes of action and reaching nonstate actors under the Alien Tort Act. The court in Kadić v. Karadžić20 adopted one of the
most liberal readings of the statute in recognizing causes of action. In Kadić, the Second
Circuit held that even non-systematic or isolated rape, torture, and execution “are actionable
under the Alien Tort Act, without regard to state action, to the extent [the crimes] were
committed in pursuit of genocide or war crimes.”21 In the absence of a bright line rule,
however, subsequent decisions may narrow the broad scope of Kadić. In Sosa v. AlvarezMachain, for example, Justice Scalia concurred with the court’s decision while criticizing
Kadić and specifically noting that the majority decision was designed to rein in Kadić’s
holding.22
Customary International Law and Jus Cogens
Customary international law, like international law created by treaties and other
international agreements, is grounded in the consent of states.23 Customary international law is
comprised of “binding norms arising from the ‘general and consistent practice of states [state
17
Black's Law Dictionary 822 (7th ed. 1999).
18
346 F. Supp. 2d 538 (S.D.N.Y. 2004).
19
Id. at 547.
20
70 F.3d 232 (2d Cir. 1995).
21
Kadic, 70 F.3d at 243–44.
22
See 542 U.S. at 763-64.
23
Sarah Joseph, Corporations and Transnational Human Rights Litigation 23 (2004).
12
practice] followed by them from a sense of general legal obligation [‘opinio juris’],’” and
ordinarily binds “all States except for those who have persistently objected to its application.”24
An authoritative (and arguably conservative) list of customary human rights comes from the
Restatement (Third) of the Foreign Relations Law of the United States: genocide, slavery or
slave trade, murder, disappearance, torture or other cruel, inhuman and degrading treatment or
punishment, prolonged arbitrary detention, systematic racial discrimination, and consistent
patterns of gross violations of internationally recognized rights.25 U.S. courts have allowed a
broad list of norms to activate the ATA in preliminary proceedings, including forced exile,
forced displacement, arbitrary detention, arbitrary arrest, crimes against humanity, racial
discrimination, aircraft hijacking, pollution, rights to associate and organize, life, liberty and
personal security, peaceful assembly, and freedom of political expression.26 The following
rights have been found not to activate ATA because they are not breaches of customary
international law: health, sustainable development, freedom from discrimination per se,
freedom of speech, constructive exile, and transborder abduction.27
A core of norms within customary international law are further identified as jus
cogens:28 crimes so heinous that they stand irrespective of the consent of states or definition by
treaty or agreement, which are binding on nations even if they do not agree to them.29 Cases
under the ATA have defined both murder and slavery as jus cogens violations.30 In addition,
24
Joseph, supra note 23 at 23 (quoting Restatement (Third) of the Foreign Relations Law of the United States §
102(2) (1987)).
25
Restatement (Third) of the Foreign Relations Law of the United States § 702 (1987).
26
Joseph, supra note 23 at 26-27 (citations omitted).
27
Id. at 28.
28
The Vienna Convention on the Law of Treaties defines a jus cogens norm, or “peremptory norm” of
international law as “a norm accepted and recognized by the international community of states as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.” See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714
(9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993).
29
Id. at 714-15.
30
See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995).
13
forced labor “is so widely condemned that it has achieved the status of a jus cogens
violation.”31
The Ninth Circuit emphasized that although a jus cogens violation is, by definition, "a
violation of 'specific, universal, and obligatory' international norms" that may be pursued under
the Alien Tort Act, “any ‘violation of “specific, universal, and obligatory” international norms’
-- jus cogens or not -- is actionable under the [Act].”32 Thus, a jus cogens violation is
“sufficient, but not necessary, to state a claim under the [Alien Tort Act],” and violations of
customary international law are enough to activate the ATA.33
State Action and the ATA
When evaluating a claim under the ATA, the court first determines whether the act in
question is a violation of the law of nations, as discussed above. The standard for this
determination differs depending on whether the defendant is a state actor, i.e. that the conduct
itself is sponsored by the state or committed by an individual acting in an official capacity as
an officer of the state, or “under the color of state law.”34 While established international law
has long imposed obligations on states, extending liability to non-state actors necessitates an
assessment of the extent to which the same obligation should be placed on individuals: an
exercise with which U.S. courts are admittedly uncomfortable.35
31
See, e.g., Doe I v. Unocal, 395 F.3d 932, 945 (9th Cir. 2002), vacated for reh’g en banc, 395 F.3d 978 (9th Cir.
2003), dismissed by stipulation, 403 F.3d 708 (9th Cir. 2005); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774,
794-95 (D.C. Cir. 1984) (Edwards, J., concurring), cert. denied, 470 U.S. 1003 (1985); see also Universal
Declaration of Human Rights, G.A. Res. 217(A) III (1948) (banning forced labor); Agreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military
Tribunal, Aug. 8, 1945, art. 6, 82 U.N.T.S. 280 (characterizing forced labor as a war crime).
32
Unocal, 395 F.3d at 945 (emphasis in original); see also Papa v. United States, 281 F.3d 1004, 1013 (9th Cir.
2002) (quoting In re Estate of Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)).
33
Unocal, 395 F.3d at 945.
34
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 792 (D.C. Cir. 1984) (Edwards, J., concurring), cert. denied,
470 U.S. 1003 (1985).
35
Id. (stating that “the extension [of liability to a party other than a recognized state or one of its officials] would
require this court to venture out of the comfortable realm of established international law…in which states are the
14
Despite the reluctance of most courts to expand the scope of obligation under
international law applied to the non-state actor, it is well-recognized that there exists “a handful
of crimes to which the law of nations attributes individual responsibility.”36 In general, this
handful of crimes correlates with those violations which would be deemed jus cogens. In
Kadić, the Second Circuit expanded the scope of the ATA by holding that although “acts of
rape, torture, and summary execution,” like most crimes, “are proscribed by international law
only when committed by state officials or under color of law,” to the extent that they were
committed in isolation, these crimes “are actionable under the Alien Tort Claims Act without
regard to state action to the extent that they were committed in pursuit of genocide or war
crimes.37 Thus, even crimes like rape, torture, and summary execution, which by themselves
require state action for Alien Tort Act liability to attach, do not require state action when
committed in furtherance of other jus cogens-type crimes like slave trading, genocide, or war
crimes.38 When state action is required, the test derived from Section 1983 will apply.39
In simple cases where a non-state actor, such as a corporation, commits genocide or
slavery, the rule in U.S. courts is clear that the non-state actor has violated international law
actors.”) Id. In Tel-Oren, the majority was “not prepared to extend the definition of the “law of nations” absent
direction from the Supreme Court.” Id.
36
Id. at 795.
37
See Kadić v. Karadžić, 70 F.3d 232, 243-44 (2d Cir. 1995). The Second Circuit also recognized a third type of
claim that was cognizable under Alien Tort Act – torture and summary execution – but held that state action was
required unless the acts were part of genocide or a war crime. Id. at 243.
38
The Ninth Circuit also endorsed this approach. See Doe I v. Unocal Corp., Doe I v. Unocal, 395 F.3d 932, 945
(9th Cir. 2002), vacated for reh’g en banc, 395 F.3d 978 (9th Cir. 2003), dismissed by stipulation, 403 F.3d 708
(9th Cir. 2005).
39
See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000) (stating that under 42 U.S.C. § 1983, “[a]
private individual acts under color of law within the meaning of the statute when he acts together with state
officials or with significant state aid.”). Id. Section 1983 of the U.S. Code provides for a civil right of action
against “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities securited by the
Constitution and laws.” 42 U.S.C. § 1983 (2006).
15
and can be liable under the ATA.40 The list of human rights violations that automatically
trigger application of the ATA to non-state actors has been gradually refined by jurisprudence
over time,41 and recent rulings indicate that courts have become increasingly circumspect about
adding to the list of violations or, in some cases, even to accept precedent that extends such
violations beyond those of slavery, genocide, and war crimes.42 As discussed in further detail
below, the Supreme Court addressed the scope of the ATA as applied to non-state actors in
Sosa v. Alvarez-Machain43 and held that without a congressional mandate to authorize suits of
this type, the role of federal courts in “craft(ing) remedies for the violation of new norms of
international law…should be undertaken, if at all, with great caution.”44 The U.S. Supreme
Court decisions on this subject provide minimal guidance as to how many human rights crimes
are found within this “handful,” and analysis of the source of each human rights violation plays
a large part in determining whether the court will extend liability to a non-state actor in each
case. In a concurring opinion, Justice Scalia noted that while the majority decision reserved a
“discretionary power in the Federal Judiciary to create causes of action for the enforcement of
international-law-based norms, the judiciary is neither authorized nor suited to perform such a
function.”45 The importance of the scope of liability under the ATA has become an
increasingly controversial issue as the statute is increasingly applied against multinational
corporations accused of, among other violations, forced labor, torture, and rape.46 The judicial
40
Andrew Clapham, Human Rights Obligations of Non-State Actors 253 (Academy of European Law European
University Institute ed., 2006).
41
Clapham, supra n. 40 at 444 (stating that “the pertinent issue [to be considered by a court] became the extent to
which the common law has incorporated more contemporary violations of international law (including the law of
human rights) and whether the content of this customary international law can be said to include the torts
complained of….”).
42
Clapham, supra n. 40 at 253 (citing Wiwa vs. Royal Dutch Shell Petroleum as an example of these increasingly
conservative decisions). Wiwa is discussed further in Part III of this document.
43
Id. at 444 (citation omitted).
44
Id. (citation omitted).
45
Sosa v. Alvarez-Machain, 542 U.S. 692, 739 (2004).
46
Saman Zia-Zarifi, “Suing Multinational Corporations in the U.S. for Violating International Law,” 4 U.C.L.A.
J. IL & FA 81, 149 (1999).
16
development of corporate complicity in violations of international law represents yet another
front upon which the scope of the ATA continues to be determined in U.S. courts.
When a plaintiff does not allege conduct that supports private liability under
international law, the claim is cognizable under the Alien Tort Act only based on pleadings that
the conduct was “committed by state officials or under color of law.”47 In determining whether
a defendant has acted under the “color of law,” courts look for guidance to 42 U.S.C. § 1983.48
Acting “under color of” state law for purposes of § 1983 does not presuppose that the
defendant is an officer of a state; “[i]t is enough that he is a willful participant in joint action
with the State or its agents. Private persons, jointly engaged with state officials … are acting
‘under color’ of law for purposes of § 1983 actions.”49
The Eleventh Circuit noted that state-sponsored torture is actionable under both the
Alien Tort Act and the Torture Victim Protection Act. In the case of the Alien Tort Act, statesponsored torture “likely violates international law,” rendering claims premised upon the
statute cognizable.50 The Torture Victim Protection Act expressly requires the element of state
action,51 while some courts have held that state action is only required under the ATA if the
violation does not reach the level of jus cogens. Claims of state-sponsored torture under either
statute may be based on indirect or direct liability, as the Alien Tort Act “reaches conspiracies
and accomplice liability,”52 and the Torture Victim Protection Act addresses those who
ordered, abetted, or assisted in the wrongful act.53 Therefore, under the ATA, state action may
be attributed to a non-state actor if it can be shown that either through direct cooperation or
complicity, the non-state actor acted jointly with the state in committing the human rights
violation in question.
47
Kadić, 70 F.3d at 243.
48
Id. at 245 (citation omitted).
49
Dennis v. Sparks, 449 U.S. at 27-28 (citations omitted).
50
See Aldana, 416 F.3d at 1247 (citing Kadić v. Karadžić, 70 F.3d at 243-44).
51
See § 2(a), 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 (Historical and Statutory Notes)).
52
Aldana, 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1322,
1347 (N.D. Ga. 2002))
53
Id.
17
III.
OTHER JURISDICTIONAL BASES IN THE U.S.
While the ATA and TVPA are the most well known bases of jurisdiction upon which
plaintiffs may rely to address claims of human rights violations in U.S. courts, other bases may
provide subject matter jurisdiction for the cases that fall outside the purview of both the acts
(and may also be used to state additional claims arising from the same or similar conduct
underlying claims under the ATA or TVPA).
Tort Jurisdiction
Human rights violations can be classified as ordinary torts, giving rise to wrongful
death, assault, and battery claims.54 Negligence actions may also be brought against non-state
actors when, in the absence of intent, the non-state actor should have been aware that the
conduct in question was likely to result in a human rights violation.55 U.S. state and federal
courts only have jurisdiction over these torts in certain circumstances. State courts may hear
cases regarding transitory torts - torts unlawful in the foreign country where the act allegedly
occurred and where the law of the foreign country differs from that of the forum state. Federal
courts, on the other hand, have diversity jurisdiction to consider civil claims between aliens
and U.S. citizens if the claim is for a monetary amount greater than $75,000, which allows the
courts to hear claims brought by U.S. citizens against foreign persons or by foreign persons
against U.S. citizens.
General theories of tort liability are less attractive to plaintiffs than the ATA or TVPA
in a number of ways. If the human rights violation underlying the case is classified as a lesssevere, more common tort, U.S. courts are much less likely to interfere with the laws of a
foreign nation with a finding of liability.56 Transitory torts also appear to be more vulnerable
54
.Joseph, supra note 23 at 65.
55
Joseph, supra note 23 at 65.
56
Beth Stephens, “Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies
for International Human Rights Violations,” 27 Yale Journal of International Law 1, 31-32 (2002).
18
than the ATA or TVPA to the defense of forum non conveniens, which allows the dismissal of
a case on the ground that it should be tried in an alternative forum.57
Despite the limitations of ordinary tort jurisdiction as compared to statutory jurisdiction
in these cases, tort jurisdiction covers a range of conduct not contemplated by the ATA or
TVPA, and thus provides another potential means of redress for acts of torture. Unlike the
ATA or TVPA, tort claims may be raised even when the violator’s conduct does not qualify as
a breach of the law of nations and no state action is involved.
Once jurisdiction has been established, the plaintiff’s claims may hold the actor directly
or indirectly liable for tortious conduct. In cases of direct liability, plaintiffs may claim that the
actor intentionally, recklessly, or negligently violated the victim’s human rights. Courts are
more likely to hold defendants accountable for intentional conduct of any kind, even if not
systematic, than to impose liability based on negligence alone (especially if the result of the
negligent conduct was not reasonably foreseeable).
Tort jurisprudence also may give rise to claims against parent companies for the acts of
their subsidiaries, and thus provide a more effective means of reaching torts of corporate
actors. To hold a corporate actor indirectly liable for tortious conduct, the plaintiff will likely
claim that the actor is liable under theories of vicarious liability, joint enterprise or agency. In
the Unocal case, for example, the plaintiffs brought claims of wrongful death, battery, false
imprisonment, intentional infliction of emotional distress, negligent infliction of emotional
distress, negligence per se, and conversion in California state court.58 The company, through
its subsidiary MGTC, hired the Myanmar military to protect pipeline construction sites, and the
plaintiffs alleged the military committed tortious acts in doing so. While Unocal argued that
only its subsidiary MGTC was involved in the construction of the pipeline, the court found that
MGTC was essentially an alter ego of Unocal under these circumstances and held Unocal
57
In Wiwa v. Royal Dutch Petroleum, 226 F 3d 88, 101 (2d Cir. 2000), the Circuit Court found that the lower
court had not sufficiently deferred to the forum choice of the plaintiffs. See also Presbyterian Church of Sudan v.
Talisman Energy, Inc., 244 F. Supp. 2d 289, 337 (S.D.N.Y. 2003) (noting that had adequacy of the forum been
challenged by the plaintiff, the court would likely have decided in the plaintiff’s favor on the issue.
58
See Joseph, supra note 23 at 69 (discussing the tort causes of action filed in the Superior Court of California,
County of Los Angeles).
19
vicariously liable for MGTC’s torts. In California state court, the claims of direct tort liability
against Unocal were dismissed, but the court allowed the plaintiff’s claims of vicarious liability
to survive defendant’s motion for summary judgment.
Complex choice of law issues may encumber the effectiveness of tort claims in
transnational tort cases, as the rules on choice of law differ widely among U.S. states. Courts
commonly apply the test outlined in the Restatement of Conflict of Laws, which sets forth a
number of factors to consider in determining which jurisdiction has “the most significant
relationship to the occurrence and the parties.”59 These factors include the needs of the
international legal system; the policies of the forum and other interested states; justified
expectations; certainty, predictability, and uniformity; and ease in determining the applicable
law.60 Some states deviate from this common standard and apply the law of the forum that has
an interest in the outcome or in which the event itself occurred.61
28 U.S.C. § 1331
Human rights cases may also be tried in U.S. federal courts as violations of
international law, as federal courts have jurisdiction over matters arising under the Constitution
and federal laws under 28 U.S.C. § 1331.62 The prevailing view in the U.S. is that customary
international law is equivalent to enforceable common law for this purpose, as long as no
statutory law exists in the area.63 “Customary international law” has been interpreted as
virtually identical to the term “law of nations” in the ATA context. Self-executing treaties are
considered federal laws, but the number of self-executing treaties regarding human rights
matters has been limited by the U.S. executive practice of declaring upon ratification that such
treaties are not self-executing. Section 1331’s primary utility currently lies in providing a
cause of action to human rights victims who are U.S. nationals and lack standing under the
59
Restatement (Second) of Conflict of Laws, §145.
60
Id.
61
Gary Born, International Civil Litigation in United States Courts 635-36, 632-33 (3rd ed., 1996).
62
Section 1331 provides “[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331 (2006); see also Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (D.D.C. 1982) (denying plaintiffs jurisdiction under § 1331).
63
The Paquete Habana, 175 U.S. 677 (1900); see also Filartiga v. Peňa-Irala, 630 F.2d 876 (2d Cir. 1980).
20
ATA. If the ATA were repealed or amended, or if decisions subsequent to Sosa broadened the
reach of the statute, Section 1331 would assume greater importance.64 Courts have held that
the language of § 1331 suggests that plaintiffs must also identify a remedy granted by a law of
the United States or the law of nations, or argue successfully for one to be implied, and a
violation of “customary international law” may suffice.65 Courts have been reluctant to imply
a right of action where one does not explicitly lie under either U.S. federal law or the law of
nations, and the analysis often brings courts back to whether the law of nations holds
individuals responsible for most private (non-state) individual acts.66 As such, the ATA
jurisprudence on the meaning of the “law of nations” within the statute may become highly
relevant to interpreting actions under Section 1331.67
18 U.S.C. § 1962: Racketeer Influenced and Corrupt Organizations (RICO)
Under the federal RICO statute, any person associated with or employed by an
enterprise engaged in interstate or foreign commerce or activities which affect such commerce
may not conduct or participate in the enterprise’s affairs through a pattern of racketeering
activity or the collection of unlawful debt or conspire to do so.68 To state a RICO claim, the
plantiff must show (1) conduct (2) of an enterprise (3) through a pattern of (4) racketeering
activity.69
Requirements
An enterprise consists of a “group of persons associated together for a common purpose
of engaging in a course of conduct.”70 Corporate conduct of any kind is accomplished by an
enterprise as defined here, and as such corporations are common RICO defendants.
64
See Joseph, supra note 23 at 78 (discussing the uncertainty surrounding the scope of the ATA).
65
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779–780 (D.D.C. 1984).
66
Id.
67
Joseph, supra note 23 at 78.
68
18 U.S.C. § 1962(c) (2002).
69
Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).
70
Procter & Gamble Co. v. Big Apple Industrial Bldgs., 879 F.2d 10, 15 (2d Cir. 1989).
21
Racketeering activity is any act or threat of a list of types of conduct that includes
involuntary servitude, slavery, murder, peonage, bribery, and murder. A pattern of
racketeering activity is established by two or more instances of such activities. The definition
of racketeering does not explicitly include a reference to torture, but if torture is committed for
the purpose of accomplishing any of the list of racketeering activities, including tampering
with a witness, interference with commerce, obstruction of justice or law enforcement, or the
sexual exploitation of children, the act of torture may be actionable under the RICO statute.
To recover damages under RICO, the plaintiff must suffer property or monetary
damages. The defendant, in turn, is subject to liability of up to triple damages and plaintiff’s
legal costs.
Application of RICO to Human Rights Cases
RICO has been applied in many ATA cases involving torture and other human rights
violations as an alternative form of liability. Courts have ruled that the racketeering activities
need not have occurred in the U.S. and that extraterritorial jurisdiction may be exercised as
long as the extraterritorial damage was caused by domestic conduct or the acts themselves have
substantial effects inside the U.S..71 In Wiwa v. Royal Dutch Petroleum Co.,72 the plaintiffs
claimed that the defendants violated RICO by engaging in an enterprise, along with the
Nigerian military and another company, to perform acts such as murder, arson, extortion and
bribery. Because the plaintiffs fled and were forced to abandon their property and businesses,
the damages suffered were actionable under RICO. The alleged substantial effect of the
conduct in the U.S. was a reduction in production costs of oil shipped to the U.S. and the
associated competitive advantage the reduction would provide, which the court acknowledged
could give rise to RICO jurisdiction.
The 2002 Unocal decision, however, rejected a similar RICO claim. The court
accepted that forced labor could be classified as a racketeering activity under the statute and
that loss of “the right to make personal and business decisions about one’s own labor” equated
71
John Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).
72
Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 U.S. Dist. LEXIS 3293, *81-83 (S.D.N.Y. Feb.
22, 2002).
22
to loss of a property right, but it found the plaintiff’s allegations insufficient to satisfy the
conduct or effects tests for the extraterritorial application of RICO. As far as conduct, the
court found that transfer of money by Unocal to other parties to finance a pipeline project
around which the human rights violations occurred was not a direct cause of the injuries the
troops hired to provide security for the project inflicted. The plaintiffs also alleged that the
human rights violations would give Unocal an unfair advantage in the U.S. oil markets, but the
court held that this did not satisfy the effects test due to a lack of specific facts.73
In the case In re South African Apartheid Litigation,74 the court dismissed claims
brought by one set of plaintiffs under several provisions of RICO. RICO is silent as to its
extraterritorial application, and the court in this case declined to exercise jurisdiction over this
predominantly foreign matter.75 The court concluded that there was no meaningful assertion in
this case that any conduct occurred in the U.S. that directly caused the alleged injuries in South
Africa and that plaintiffs did not show that the alleged criminal acts had substantial direct
effects in the U.S., and as such the court did not have jurisdiction over the RICO claim. 76 The
court also noted that, jurisdictional matters aside, plaintiffs had failed to state an actionable
RICO claim because they failed to plead that defendants formed a racketeering enterprise,
which RICO defines to “include[] any individual, partnership corporation, association, or other
legal entity, and any union or group of individuals associated in fact although not a legal
entity.”77 The court held that “conclusory allegations that a group of corporations, whose sole
common feature was the doing of business in a nation of millions of people at some point in a
period of over forty years, is a RICO enterprise are simply insufficient to survive a motion to
dismiss.”78
73
Unocal, 395 F.3d at 962.
74
346 F. Supp. 2d 538 (S.D.N.Y. 2004).
75
Id. at 555.
76
Id.
77
Id. at 556.
78
Id at 557.
23
IV.
DEFENSES AND OTHER IMPEDIMENTS TO SUCCESSFUL SUITS
Defining Torture
While the TVPA contains a statutory definition of torture, the ATA does not define the
term. Therefore, it is up to the plaintiff to establish that the conduct alleged rises to the level of
torture as generally accepted under international law. When considering claims of torture in
international law, courts have looked to the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”).79 The Eleventh Circuit, for
example, observed that federal immigration law relies on CAT when deciding whether aliens
may be deported to nations that would torture them.80 CAT served as guidance for relevant
definitions of torture according to the laws of nature.81 CAT defines torture as
any 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.82
Statutes of Limitation
79
G.A. Res. 39/46, U.N. GAOR, Supp. No. 51, U.N. Doc. A/39/51 (1984), reprinted in 23 I.L.M. 1027 (“CAT”).
For application of the treaty, see, e.g., In re Estate of Marcos Human Rights Litig., 25 F.3d at 1475; Kadić v.
Karadžić, 70 F.3d at 243-44.
80
See Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1252 (11th Cir. 2005) (citing United States Policy
with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture § f, 112 Stat. 2681-822)
(1990) (codified at 8 U.S.C. § 1231 (2006) (Historical and Statutory Note)); see also Cadet v. Bulger, 377 F.3d
1173, 1194 (11th Cir. 2004).
81
82
Aldana v. Del Monte Fresh Produce, 416 F.3d at 1252.
Part I, Art. I, G.A. Res. 39/46, U.N. GAOR, Supp. No. 51, U.N. Doc. A/39/51 (1984), reprinted in 23 I.L.M.
1027.
24
Courts have applied a 10-year statute of limitations to both Torture Victim Protection
Act and Alien Tort Claims Act claims.83 The statute of limitations, however, is subject to
application of the doctrine of equitable tolling.84 Equitable tolling “is appropriate when a
movant untimely files because of extraordinary circumstances that are both beyond his control
and unavoidable, even with diligence.”85 In Jean v. Dorelien, the plaintiff filed an action under
the ATA and TVPA over ten years after the acts giving rise to the claims occurred. Under the
TVPA, the statute of limitations was tolled until Dorelien entered the United States and the
plaintiff had the opportunity to obtain personal jurisdiction over him.86 According to the court
in Jean, Congress also noted that “plaintiffs face unique impediments such as reprisals from
death squads and immunity of high-ranking government officials in bringing human rights
litigation…and [litigation] will often not be possible until there has been a regime change in
the plaintiff’s country of origin, after which the plaintiff can investigate and compile evidence
without fear of reprisals against him, his family and witnesses.”87 Many TVPA decisions
relying on the Senate Report’s mandate of equitable tolling also conclude that the statute of
limitations should be tolled until the defendant is stripped of immunity from suit.88 In Jean,
the court ruled that because Dorelien was in a position of power in the Haitian military until
1994 and not present in the United States, the statute of limitations was equitably tolled until
“Dorelien was removed from his position, the repressive security forces [in Haiti] were
83
See, e.g., 28 U.S.C. § 1350 at § 2(c); see also Papa v. United States, 281 F.3d at 1011-24; In Re World War II
Era Japanese Forced Labor Litig., 164 F. Supp. 2d at 1180.
84
See, e.g., Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154–
55 (11th Cir. 2005); Papa v. United States, 281 F.3d 1004, 1012–13 (9th Cir. 2002).
85
Jean, 431 F.3d at 779.
86
Id. The Senate report for the TVPA stated:
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 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.
S. Rep. No. 102–249, at 11 (1991).
87
Jean, 431 F.3d at 780.
88
See, e.g., Collett v. Socialist Peoples’ Libyan Arab Jamahiriya, 362 F. Supp. 2d 230, 242 (D.D.C. 2005).
25
dismantled and the democratically elected government resumed power.”89 Plaintiff’s claims
were therefore considered timely and the Eleventh Circuit reversed the lower court’s order
dismissing the claim.90
The Foreign Affairs Doctrine
In cases where human rights violations are litigated as state tort claims (as discussed in
Section III above), a defendant may move to dismiss the claims based on the foreign affairs
doctrine. According to this doctrine, state law is preempted when a conflict exists between the
state law and the “exercise of the federal executive authority.”91 In Am. Ins. Ass’n v.
Garamendi, California’s Holocaust Victim Insurance Relief Act of 1999 mandated disclosure
by insurance companies of any insurance policies issued between 1920 and 1945 in Europe.
The purpose of the statute was to facilitate the compensation of Holocaust victims who were
not compensated under insurance policies purchased during that period. At the same time,
however, the federal government was negotiating an agreement with Germany as to how Naziera insurance claims would be settled. Once it was determined that the state law may encroach
on the administration of foreign affairs, the court applied a step-by-step analysis to determine
whether the state law should be preempted under the circumstances. In Garamendi, the Court
held that the California state law could not be applied because it conflicted with the federal
government’s powers to regulate and manage foreign affairs.92 The foreign affairs doctrine
only relates to the federal government’s preemption of state law in the area of foreign affairs,
and is “compelled by respect for the constitutional grant of power to the executive branch –
and not state governments – to control the United States’ foreign relations with other
countries.”93 If the plaintiff can initially show that the state law has not encroached on the
federal government’s administration of foreign affairs, the court is likely to reject the
defendant’s argument that the foreign affairs doctrine should be applied to preempt any state
law claims.
89
Jean, 431 F.3d at 781.
90
Id. at 776.
91
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 421 (2003).
92
Id. at 420.
93
See Doe v. Exxon Mobil, Civil Action No. 01-1357 (LFO) (D.D.C. March 2, 2006) at 5.
26
Personal Jurisdiction
In accordance with the U.S. Constitution, a defendant must have “certain minimum
contacts with [a forum] ‘such that the maintenance of the suit does not offend “traditional
notions of fair play and substantial justice.”’”94 Personal jurisdiction may be found on the
basis of either general or specific jurisdiction. While general jurisdiction requires a higher
level of contact between the defendant and the forum, it also allows the court to try any and all
types of cases against the defendant. Specific jurisdiction, on the other hand, is established by
the event itself and requires less contact with the forum as a result. General jurisdiction is
usually relied upon in transnational human rights cases, as the conduct underlying the
complaints rarely occurs in the U.S. Defendant foreign corporations may establish contacts
with the forum sufficient to establish general jurisdiction if the corporation has substantial,
ongoing business relations in the forum. Additionally, jurisdiction can be grounded over
foreign parent companies based upon the existence of a subsidiary or agent in the forum if the
parent and subsidiary are indistinguishable (the “alter-ego” test) or the subsidiary is an agent of
the parent.
In Presbyterian Church of Sudan v. Talisman Energy, the court held that personal
jurisdiction existed over Talisman because Talisman “does business” in New York. In addition
to being listed on the NYSE, Talisman wholly owns a subsidiary that serves as its agent and
conducts significant operations in New York.95
Forum Non Conveniens
The ATA and TVPA statutory jurisdictional mandates made it easier for the plaintiff to
be heard in court, but traditional tort cases remain subject to the defense’s claim of forum non
conveniens (FNC). FNC, a common law doctrine, allows courts to dismiss cases if the balance
of relevant interests weighs in favor of a foreign forum. Requested by the defendant, there are
no strict rules to guide the determination. and it is largely a matter of the court’s discretion.
For FNC to be considered, the defendant must be subject to jurisdiction in the relevant forum
94
International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940).
95
Id. at 330.
27
and the relevant forum must permit litigation on the subject matter of the claims. FNC is not
available unless another adequate forum exists for the claims. To be considered adequate, the
alternative forum must provide means by which the plaintiff will argue the case and a remedy
available if plaintiff’s argument is successful. Courts have held that the United States has an
interest in vindicating international human rights violations and allowing such suits to
proceed.96
In Talisman Energy,97 the court rejected Talisman’s argument that the doctrine of forum
non conveniens mandated dismissal. Courts in the Second Circuit grant dismissal only in “rare
instances” and rarely disturb plaintiffs’ choice of forum. If an adequate alternative forum
exists, the court undertakes a balancing test and weighs several factors involving the private
interests of the parties and the public interests at stake.98 The court decided that Sudan was not
an adequate alternative forum because it was unlikely to provide plaintiffs, who are allegedly
victims of an ethnic cleansing campaign, with a fair trial.99 Canada was also an inadequate
forum for two reasons. First, a Canadian court may apply Sudanese law, which discriminates
against non-Muslims and therefore would not provide plaintiffs with a fair trial. Second, a
Canadian court would only treat plaintiffs’ allegations as violations of Canadian law, not
international law, and it was not clear that a Canadian court would recognize the gravity of
plaintiffs’ allegations.100 In weighing the factors, the court noted that U.S. courts give
deference to a U.S. resident’s choice of a U.S. forum, and the named plaintiffs in this litigation
resided in the U.S.101 The court rejected Talisman’s arguments that U.S. litigation would
impose hardships on this multinational corporation that routinely litigates cases outside of its
home jurisdictions.102 The court also noted the relative wealth of the parties and the hardship
96
Presbyterian Church of Sudan, 244 F. Supp. 2d 289, 339–340 (S.D.N.Y. 2003).
97
Id.
98
Id.
99
Id. at 335-336.
100
Id. at 337-338.
101
Id. at 338.
102
Presbyterian Church of Sudan, 244 F. Supp. 2d at 340.
28
that plaintiffs may disproportionately bear from the costs and inconveniences of having to
bring suit in another forum.103
Abstention Issues
Even when a district court has jurisdiction over a defendant, the court may choose not
to exercise the jurisdiction based on abstention principles, such as the application of the act of
state doctrine and principles of international comity.
Act of State Doctrine
When jurisdiction is based on diverse citizenship of the parties, the act of state doctrine
may be considered a principle of abstention.104 Other courts envisage the doctrine as a
“principle of decision” or a “rule of decision,”105 which would require the court to assume that
the foreign state’s actions in issue were valid and render a binding judgment on the merits on
that assumption instead of abstaining from deciding the case on the merits.106
The doctrine basically contemplates that “[e]very 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. Redress of
grievances by reason of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.”107 Thus, “[t]he act of state doctrine in its traditional
formulation precludes the courts of this country from inquiring into the validity of the public
acts a recognized foreign sovereign power committed within its own territory.”108
103
Id. at 341.
104
See, e.g., Banco Nacional de Cuba v. Chemical Bank New York Trust Co., 822 F.2d 230, 235 (2d Cir. 1987);
Hunt v. Mobil Oil Corp., 550 F.2d 68, 74 (2d Cir. 1977).
105
See, e.g., W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 406 (1990); Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); Ricaud v. American Metal Co., 246 U.S. 304, 309-10
(1918); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 707 (9th Cir. 1992).
106
See Bigio v. The Coca-Cola Export Co., 239 F.3d at 452 n.7.
107
168 U.S. 250, 252 (1897).
108
Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 401.
29
The U.S. Supreme Court developed a three-factor balancing test to determine whether
the act of state doctrine should apply: “(1) 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.… (2) The less important the implications of an issue are for our
foreign relations, the weaker the justification for exclusivity in the political branches. (3) The
balance of relevant considerations may also be shifted if the government which perpetrated the
challenged act of state is no longer in existence….”109 The Ninth Circuit added a fourth factor
to consider: whether the foreign state was acting in the public interest.110
The Ninth Circuit applied the four-factor balancing test when it considered the
application of the act of state doctrine in Underhill v. Hernández.111 The court concluded that
there was an international consensus that murder, torture, and slavery are jus cogens violations,
which undermines Unocal’s argument that the acts of Myanmar agencies should be treated as
acts of states. Myanmar’s human rights abuses had been denounced and sanctions had been
imposed; accordingly, the district court correctly concluded that “‘it is hard to imagine how
judicial consideration of the matter will so substantially exacerbate relations with [the
Myanmar military] as to cause hostile confrontations.’”112 Condemnation of acts of the
incumbent government of Myanmar was the only factor that supported Unocal’s arguments in
favor of application of the act of state doctrine.113 Finally, the appellate court could not
conceive of valid contentions that alleged violations of international human rights were in the
public interest.114 As the four-factor balancing test weighed against application of the act of
state doctrine, the doctrine did not bar the plaintiff’s action.
In Bigio v. The Coca-Cola Export Co., the Second Circuit declared that the act of state
109
Id. at 428.
110
Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir. 1992).
111
Doe I v. Unocal Corp., 395 F.3d 932, 958 (9th Cir. 2002), vacated for reh’g en banc, 395 F.3d 978 (9th Cir.
2003), dismissed by stipulation, 403 F.3d 708 (9th Cir. 2005).
112
Id. at 959.
113
See id. at 960.
114
See id.
30
doctrine “is not jurisdictional.”115 The doctrine’s application requires a balancing of interests,
and should not be invoked if its underlying policies do not justify its application.116 “[P]olicy
concerns underlying the doctrine require that the political branches be preeminent in the realm
of foreign relations. Accordingly, the Supreme Court has directed that each case be analyzed
individually to determine the need for a separation of powers: ‘the less important the
implications of an issue are for our foreign relations, the weaker the justification for exclusivity
in the political branches.’”117 The Second Circuit admonished that application of the doctrine
demands a case-by-case analysis “tempered by common sense.”118 “If adjudication would
embarrass or hinder the executive in the realm of foreign relations, the court should refrain
from inquiring into the validity of the foreign state’s act.”119
The Bigio court noted that the incumbent Egyptian government was “far removed in
time and circumstance from that which seized the [plaintiffs’] property,” and the current
government had repudiated the seizure and endeavored to remedy the matter.120 Accordingly,
a decision by the district court would be unlikely to offend the government of Egypt or
interfere with its relationship with the United States. Invocation of the act of state doctrine by
the lower court was therefore deemed imprudent.121
Principles of International Comity
Another basis for denying recovery in claims seeking redress for acts of torture lies in
principles of international comity. Such principles have been characterized as “the recognition
which one nation allows within its territory to the legislative, executive or judicial acts of
115
239 F.3d at 451 (quoting Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 520 (2d Cir.
1985)).
116
See W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. at 406.
117
Braka v. Bancomer, S.N.C., 762 F.2d 222, 224 (2d Cir. 1985) (quoting Banco Nacional de Cuba v. Sabbatino,
367 U.S. at 428).
118
Allied Bank Int’l, 757 F.2d at 521.
119
Id. at 520-21 (citations omitted) (footnote omitted).
120
Bigio v. The Coca-Cola Export Co., 239 F.3d 440, 443 (2d Cir. 2000).
121
Id.
31
another nation.”122 A court may exercise discretion to defer to another nation by declining to
exercise jurisdiction, as when, for example, a case is properly adjudicated in a foreign state.123
In Bigio v. The Coca-Cola Export Co., the Second Circuit noted that the district court
would need to address whether the plaintiffs’ property in Egypt had been wrongfully seized by
a prior Egyptian regime, and whether the plaintiffs could assert rights to the property. 124 The
nexus between resolution of these issues and the interests of Egypt was deemed “undeniably
strong,” whereas the only connection between the suit and the United States was the fact that
the defendants were American corporations. Therefore, just as retention of jurisdiction was not
the only possible course of action, neither was dismissal on comity grounds compelled. The
Second Circuit remanded the case to the district court to determine the application of comity
principles.125
Choice of Law
In considering claims asserted under the Alien Tort Act, courts have variously applied
international law, the law of the state where the underlying events occurred, or the law of the
forum state.126 In Doe I v. Unocal Corp., Unocal urged the Ninth Circuit to apply the law of
Myanmar, i.e., the law of the state where the events in issue allegedly occurred, in lieu of
international law.127 The appellate court ruled, however, that
[w]here, as in the present case, only jus cogens violations are alleged -- i.e.,
violations of norms of international law that are binding on nations even if they
do not agree to them[, it may] … be preferable to apply international law rather
than the law of any particular state, such as the state where the underlying
events occurred or the forum state. The reason is that, by definition, the law of
122
Hilton v. Guyot, 159 U.S. 113, 164 (1895).
123
See, e.g., In re Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir. 1996); Allstate Life Ins. Co. v.
Linter Group, Ltd., 994 F.2d 996 (2d Cir. 1993) (affirming dismissal in light of proceeding pending in Australia),
cert. denied, 510 U.S. 945 (1993).
124
239 F.3d at 454.
125
Id. at 455.
126
See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12 (2d Cir. 2000).
127
395 F.3d at 948.
32
any particular state is either identical to the jus cogens norms of international
law, or it is invalid. Moreover, "reading § 1350 as essentially a jurisdictional
grant only and then looking to [foreign or] domestic tort law to provide the
cause of action mutes the grave international law aspect of the tort, reducing it
to no more (or less) than a garden-variety municipal tort," i.e., reducing it to a
tort "relating to the internal government of a state of nation (as contrasted with
international)." Significantly, we have already held that the [Alien Tort Act] not
only confers jurisdiction but also creates a cause of action.128
The Ninth Circuit also found the factors set forth in the Restatement (Second) of Conflict of
Laws § 6 (1969) to support applying international law:
First, "the needs of the … international system[ ]" are better served by applying
international rather than national law. Second, "the relevant policies of the
forum" cannot be ascertained by referring -- as the concurrence does -- to one
out-of-circuit decision which happens to favor federal common law and
ignoring other decisions which have favored other law, including international
law. Third, regarding "the protection of justified expectations," the "certainty,
predictability and uniformity of result," and the "ease in the determination and
application of the law to be applied," we note that the standard we adopt today
from an admittedly recent case nevertheless goes back at least to the Nuremberg
trials and is similar to that of the Restatement (Second) of Torts. Finally, "the
basic policy underlying the particular field of law" is to provide tort remedies
for violations of international law. This goal is furthered by the application of
international law, even when the international law in question is criminal law
but is similar to domestic tort law…. We conclude that given the record in the
present case, application of international law is appropriate.129
Judge Reinhardt, concurring in Doe I v. Unocal, believed that analysis of Unocal’s
third-party tort liability should be resolved by applying general federal common law tort
128
Id. at 948-49 (citations omitted).
129
Id. at 959 (citation omitted) (footnote omitted).
33
principles instead of the majority’s international aiding and abetting standards.130 The
concurring opinion expresses hesitation to apply “recently promulgated” standards, which were
“evolving,” including “a nascent criminal law doctrine recently adopted by an ad hoc
international criminal tribunal.”131 Judge Reinhardt endorsed considering joint venture
liability, premised upon liability on a member of a joint venture for acts of its co-venturers;
agency liability, examining the relationship between the corporate defendant and the
government’s military to determine whether the latter acted as the company’s agent; and
principles of reckless disregard to determine whether the company-defendant had actual
knowledge that the military likely would engage in human rights abuses and recklessly
disregarded the risk.132
130
395 F.3d at 963.
131
Id. at 963, 966.
132
See id. at 970 (discussing co-venturer liability), 972 (discussing agency liability), 974 (discussing mens rea).
34
Choice of Law in State Cases
In Doe vs. Exxon Mobil Corp.,133 state tort claims were being heard under diversity
jurisdiction in the federal district court for the District of Columbia. The claims, including
wrongful death, negligence, assault, battery, intentional infliction of emotional distress, and
false imprisonment, were made in the complaint as violations of the laws of the District of
Columbia, New Jersey, Texas, and Delaware, as well as of Indonesia. Having determined that
the law of Indonesia would not apply, the court held that the law of the forum state would
apply to all claims except for the wrongful death claim, which would be tried under Delaware
law. The court used the choice of law rules of the District of Columbia, the forum state, which
involves a “governmental interests” analysis. The analysis requires determining whether one
or more states have an interest in applying their own laws to the facts of the case and if so, the
relative importance of those interests is to be considered based upon four factors: the place of
the injury, the place where the conduct causing the injury occurred, the domicile, residence,
etc. of the parties, and the place where the relationship is centered.
Foreign Sovereign Immunities Act Defenses
In order to assert jurisdiction in a civil action over a foreign state, one of the statute’s
specified exceptions under the Foreign Sovereign Immunities Act134 must apply. Specifically,
the statute insulates foreign states from the jurisdiction of U.S. courts except when the action is
based “(1) upon a commercial activity carried on in the United States by the foreign state; or
(2) upon an act performed in the United States in connection with a commercial activity of the
foreign state elsewhere; or (3) 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.”135
In Doe I v. Unocal Corp., the plaintiffs pointed to the second and third exceptions when
they asserted claims against agencies of Myanmar. Neither exception was availing. The
second exception applies only when the act performed in the United States is an element of the
133
Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005).
134
28 U.S.C. § 1330, 1602, et seq (2006).
135
29 U.S.C. § 1605(a) (2006).
35
claim the plaintiff asserts against the state. In Doe I v. Unocal Corp., however, the plaintiffs’
claims rested exclusively on acts that the foreign state defendants allegedly performed in
Myanmar.136 The third exception requires that the foreign state have engaged in commercial
activity when the state “exercises only those powers that can also be exercised by private
citizens, as distinct from those powers peculiar to sovereigns.”137 The Ninth Circuit
determined that “[t]he locus” of the alleged injuries resulting from murder, rape, torture, and
forced labor was Myanmar, and thus any effects in the United States did not satisfy the
exception’s requirement of “direct effect[s].”138
V.
LOOKING AHEAD: CHANGES IN THE LANDSCAPE
Potential Reform of the ATA and Executive Control Over International Law
Because the ATA has been used effectively in cases against large corporations, several
scholars and human rights advocates have raised concern regarding the strong correlation
between the interests of the Bush administration and large domestic corporations.139 Recent
developments indicate that the current U.S. administration and some members of Congress are
in favor of narrowing the breadth of the ATA to effectively eliminate its applicability to nonstate actors.
The U.S. administration has not always advocated a restrictive application of the ATA.
In Filártiga v. Peña-Irala, the State and Justice Departments submitted a joint amicus brief to
the Second Circuit Court of Appeals stating that “…whatever may have been true before the
turn of the century, today a nation has an obligation under international law to respect the
rights of its citizens to be free of official torture.”140 Because most cases against corporations
136
Doe I v. Unocal Corp., Doe I v. Unocal, 395 F.3d 932, 957 (9th Cir. 2002), vacated for reh’g en banc, 395
F.3d 978 (9th Cir. 2003), dismissed by stipulation, 403 F.3d 708 (9th Cir. 2005).
137
Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993) (citations omitted).
138
Unocal, 395 F.3d at 958.
139
See Beth Stephens, “Upsetting Checks and Balances: The Bush Administration’s Efforts to Limit Human
Rights Litigation,” 17 Harv. Hum. Rts. J. 169, 170 (2004) (noting that “[t]he Bush Administration’s opposition to
human rights litigation coincides with the filing of lawsuits against politically powerful defendants: corporations,
foreign government officials, and the U.S. government itself.”) Id.
140
Stephens, id. at 173.
36
under the ATA proceed on the basis of indirect liability, Congress moved to eliminate indirect
liability from the purview of the Act. A draft bill (S. 1874) introduced by Senator Diane
Feinstein in October 2005 proposed to amend the ATA to “clarify jurisdiction of Federal
Courts over a tort action brought by an alien.”141 In the bill, jurisdiction over ATA cases was
granted to federal district courts only when the defendant is a “direct participant acting with
specific intent to commit the alleged tort.”142 The courts would not have jurisdiction in such
suits if “a foreign state is responsible for committing the tort in question within its sovereign
territory.”143 According to an ExxonMobil spokesperson, “the lawsuit created the potential for
any U.S. company operating overseas to be held vicariously liable for host government
actions,” and such liability would “risk interference with U.S. foreign relations and
diplomacy.144
In addition, the Sosa decision alluded to the impact of executive involvement in ATA
cases. In a footnote, Justice Souter stated that in appropriate circumstances, the executive
branch’s views of the effect of an ATA suit on U.S. foreign policy should be given great
deference.145 In July 2002, the Legal Adviser to the United States wrote a letter to the
presiding judge in the Exxon case to argue that the case be dismissed because of the potentially
adverse effect the outcome could have on foreign relations, including impairment of
“cooperation with the U.S. (by Indonesia) across the full spectrum of diplomatic initiatives,
including counterterrorism, military and police reform, and economic and judicial reform.”146
The United States District Court for the District of Columbia had requested the State
Department’s opinion, at defendant Exxon Mobil’s request, arguably as possible grounds for
141
S. 1874, 109th Cong. (1st Sess. 2005).
142
Id.
143
Id.
144
Slobodan Lekic, “Exxon: Torture Suit Sets Bad Precedent,” Associated Press, March 8, 2006, available at
http://www.usatoday.com/money/industries/energy/2006-03-08-exxon-indonesia-precedent_x.htm (last visited
June 8, 2006).
145
Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2766 n. 21 (2004).
146
See, e.g. Letter from William H. Taft, IV, Legal Adviser, U.S. Dep’t. of State, to Judge Louis F. Oberdorfer,
July 29, 2002 at 3; Memorandum and Order, Doe I v. Exxon Mobil Corp., No. 01-Civ-1357 (LFO), 393 F. Supp.
2d 20 (D.D.C. 2005).
37
dismissal.147 At issue was whether adjudicating the claims of Indonesian nationals, who
allegedly suffered murder, rape, and torture at the hands of Exxon security guards, would
offend Indonesia’s government, damaging relations between the U.S. and Indonesia. In
October 2005, Judge Oberdorfer ruled that the suit could continue on state law claims, but
dismissed the claims under the federal Alien Tort Claims Act and the Torture Victim
Protection Act. In the order, Judge Oberdorfer ruled that narrowing the suit to focus on state
law “should eliminate the State Department’s concerns.” Plaintiffs filed an amended complaint
in January 2006 which would hear the state law claims based on diversity jurisdiction. The
complaint stated the claims, including wrongful death, negligence, assault, battery, intentional
infliction of emotional distress and false imprisonment, as violations of the laws of the District
of Columbia, New Jersey, Texas and Delaware, as well as of Indonesia.148 In March 2006,
Judge Oberdorfer ruled on defendant’s motion to dismiss, allowing all of the claims to proceed
except for the negligent infliction of emotional distress claim.149
VI.
A CASE-BY-CASE SURVEY OF SUITS AGAINST NON-STATE ACTORS IN U.S.
COURTS
Aldana v. Del Monte Fresh Produce, N.A., Inc.150
Plaintiffs were officers in a national trade union of plantation workers in Guatemala,
who were in the process of negotiating a new collective bargaining agreement for plantation
workers with Bandeuga, a wholly-owned subsidiary of Del Monte.151 The plaintiffs alleged
that Bandeuga hired a private, armed security force, a practice that is legally permissible and
regulated in Guatemala. According to the complaint, one or more of the plaintiffs were held
hostage by the security force, threatened with death, and shoved with guns. 152 One plaintiff
147
Kenneth Roth, U.S. Hypocrisy in Indonesia, Int’l Herald Tribune, August 14, 2002, at 4.
148
For factual allegations and the procedural history of the case, see Doe v. Exxon Mobil Corp., 393 F. Supp. 2d
20 (D.D.C. 2005).
149
Memorandum and Order, Doe I v. Exxon Mobil Corp., No. 01-Civ-1357 (LFO), 393 F. Supp. 2d 20 (D.D.C.
2005).
150
416 F.3d 1242 (11th Cir. 2005).
151
Id. at 1245.
152
Id.
38
allegedly was told that he would be burned alive.153 Reportedly blamed for economic decline
in Izabal by a putative president of the municipal Chamber of Commerce, two of the plaintiffs
were taken to a radio station where they were forced at gunpoint to announce that the labor
dispute had concluded.154 They signed letters of resignation, also at gunpoint, and were
released after more than eight hours of detention. The leader of the security force allegedly
threatened to kill the plaintiffs if they either failed to leave Guatemala or relocated to
Mexico.155
In Aldana, the Eleventh Circuit rejected the plaintiff’s argument that Guatemala’s
registration and tolerance of private security forces transformed the acts into state acts. 156 Nor
did alleged inaction by police in response to events that did not occur within their plain sight
establish state action.157 The court determined, notwithstanding the physical proximity of the
police station to the site of the alleged torture, there were no allegations that the police knew
about the events but “purposefully turned a blind eye” to them.
Nevertheless, there were allegations that various public officials were part of the
security force, assisted the security force, or were urged by the defendants to permit the
violence to occur. The mayor allegedly took two of the plaintiffs at gunpoint to the radio
station. 158 Accordingly, when the court construed the allegations favorably to the plaintiffs,
sufficient affirmative acts were pleaded to establish state action. Notably, the court
distinguished between the mayor’s presence, which would not have given rise to an inference
of state action, and his alleged participation in the forcible events, which did establish state
action.159
153
Id. at 1252 n. 9.
154
See id. at 1245.
155
Id.
156
See Aldana, 416 F.3d at 1248 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (concluding state’s
alcohol licensing and regulatory scheme did not transform a private club with a liquor license into a state actor)).
157
Id. at 1248.
158
Id. at 1249.
159
Id. at 1249-50.
39
The Eleventh Circuit also affirmed dismissal of the plaintiffs’ “non-torture” claims
under the Alien Tort Act. The appellate court relied on the Supreme Court’s conclusion in
Sosa that “‘a single illegal detention of less than a day…violates no norm of customary
international law so well defined as to support the creation of a federal remedy.’”160 Although
the Eleventh Circuit acknowledged that “[t]he detention alleged here was more frightening
than the one in Sosa,” the court dismissed the claim based on the plaintiffs having only been
held a “short time.”161
Nor did the plaintiffs prevail on their claims of crimes against humanity. In addition to
pleading deficiencies, the court deemed such claims infirm because they are recognized as
violations of international law only when “they occur as a result of ‘widespread or systematic
attack’ against civilian populations.”162 Assertions of systematic and widespread efforts
against organized labor in Guatemala, first asserted by the plaintiffs on appeal, were deemed
too tenuous to sustain the claim.
The plaintiffs were permitted to raise separate claims for state-sponsored torture under
the Torture Victim Protection Act.163 Relying on definitions of torture set forth in CAT (see
supra at 4), the court ruled that plaintiffs’ allegations of intentionally inflicted physical pain
and suffering did not meet the statutory requirements, however, because the pleadings were
conclusory. See id. at 1253.
Bigio v. The Coca-Cola Co. 164
Plaintiffs complained that the Egyptian government wrongfully seized property
plaintiffs owned in Heliopolis, Egypt because the plaintiffs were Jewish.165 A subsequent
Egyptian administration order required return of the property or remittance of the proceeds of
any sale to the plaintiffs, but the instructions were not honored. Coca-Cola subsequently
160
Id. at 1248 (quoting Sosa v. Alvarez-Machain, 542 U.S at 738) (2004).
161
Id.
162
Id. (quoting Cabello v. Fernandez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005)).
163
Aldana, 416 F.3d at 1251.
164
239 F.3d 440 (2d Cir. 2000), complaint dismissed at 2005 U.S. Dist. LEXIS 1587 (S.D.N.Y. Feb. 3, 2005).
165
Id. at 444.
40
leased the property from the Egyptian government, and the complaint alleged that Coca-Cola
purchased or leased the property with knowledge that the seizure was unlawful.166
The Second Circuit considered whether the plaintiffs’ claim was viable under the Alien
Tort Act on the ground that Coca-Cola violated the law of nations if it acted solely as a nongovernmental entity, i.e. without any allegation of state action. The Second Circuit noted that
the plaintiffs’ complaint against Coca-Cola rested exclusively on an allegation that it had
acquired or leased property that previously had been expropriated by the government because
of the plaintiffs’ religion. “However reprehensible, neither racial or religious discrimination in
general nor the discriminatory expropriation of property in particular is listed as an act ‘of
universal concern’ in § 404 [of the Restatement] or is sufficiently similar to the listed acts for
us to treat them as though they were incorporated into § 404 by analogy.”167
The plaintiffs claims also failed to allege that Coca-Cola acted together with state
officials or that they committed a violation of the law of nations with significant state aid. “A
private party does not ‘act under color of law’ simply by purchasing property from the
government.”168 Furthermore, there was no evidence, or even any allegations in the complaint,
to suggest that Coca-Cola had been a participant or a co-conspirator in the Egyptian
government’s initial seizure of the property, and any indirect economic benefit that inured to
Coca-Cola from the seizure was an insufficient predicate for jurisdiction over the company
under the Alien Tort Act.169 The court also ruled that Coca-Cola was under no legal obligation
to intervene to prevent the Egyptian government from the seizing the property.170
Doe I v. Unocal Corp.171
A state-owned company in Myanmar (formerly Burma) licensed a French oil company
to produce, transport, and sell natural gas extracted from deposits on the Myanmar coast and
166
Id. at 444, 446-447.
167
Bigio, 239 F.3d at 448.
168
Id.
169
Id. at 448-49.
170
171
Id. at 449.
395 F.3d 932 (9th Cir. 2002).
41
transferred through a pipeline to be constructed and operated by the French company into
Thailand. The defendant, Unocal, held a 28 percent interest in the French company.
Myanmar’s military provided security and other services for the pipeline construction project,
and Unocal was aware of the military’s involvement.172 Indeed, there was a material question
of fact as to whether the military was hired by one of the corporate defendants to provide such
services, and whether Unocal was aware of the retention and whether Unocal even participated
in directing the military.173
Villagers from the region through which the project was built alleged in the case that
the Myanmar military had forced them, under threat of violence, to work on the pipeline
project and subjected them to acts of murder, rape, and torture. Witnesses described summary
executions of villagers who refused to submit to forced labor or who became too weak to work
effectively. One plaintiff testified that after her husband tried to escape from the forced labor
program, soldiers shot at him and that in retaliation for his attempted escape, her baby was
burned to death and she was harmed.174 Another plaintiff alleged that the Myanmar military
subjected him to forced labor, without compensation and under threat of death, along the
pipeline route in connection with the pipeline project. The other individual plaintiffs alleged
that they owned land located along the pipeline route and were not compensated when the land
was confiscated by the Myanmar military in connection with the project. Plaintiffs alleged,
among other claims, violations of the law of nations under the Alien Tort Act.175
Because the plaintiffs testified that the alleged acts of murder, rape, and torture
occurred in furtherance of forced labor, state action was not required to give rise to liability
under the Alien Tort Act. The Ninth Circuit explained that forced labor is a modern variant of
slavery and thus a showing of state action is not required to expose a private company to
liability under the Alien Tort Act.176
172
Id. at 937.
173
Id. at 938-39.
174
Id. at 939-40.
175
Id.
176
Unocal, 395 F.3d at 954.
42
The court ruled that there was a material question of fact as to whether forced labor was
used in connection with the construction of the pipeline. Evidence had been proffered that
Unocal gave practical assistance to the military in subjecting plaintiffs to forced labor, in the
form of making payments; hiring the military to provide security and building infrastructure
along the pipeline route in exchange for money or food; and using photographs, surveys, and
maps to suggest where the military should engage in security measures.177 Such assistance,
said the court, “had a ‘substantial effect’ on the perpetration of forced labor, which ‘most
probably would not have occurred in the same way” without someone hiring the Myanmar
military to provide security and without someone showing them where to do it.”178
The appellate court also concluded that Unocal may be liable under the Act for aiding
and abetting the Myanmar military in allegedly subjecting the plaintiffs to murder and rape,
just as it may be liable for aiding and abetting the military in subjecting the plaintiffs to forced
labor.179 Unocal was not deemed similarly liable for alleged acts of torture. Although a
number of witnesses described acts of extreme physical abuse that might give rise to a claim of
torture, the allegations all involved victims other than plaintiffs, and they had not been certified
as a class.180
The Ninth Circuit set forth the standard for aiding and abetting under the Alien Tort Act
as “knowing practical assistance or encouragement that has a substantial effect on the
perpetration of the crime,” relying on two decisions issued by the International Criminal
Tribunal for the former Yugoslavia, Prosecutor v. Furundzija181 and Prosecutor v. Tadic,182
177
Id. at 952-53. 953 n. 29.
178
Id.
179
See id. at 955-56.
180
See id. at 954, 956.
181
IT-95-17/1-T (Dec. 10, 1998), reprinted in 38 I.L.M. 317 (1999) (holding that "the actus reus of aiding and
abetting in international criminal law requires practical assistance, encouragement, or moral support which has a
substantial effect on the perpetration of the crime.") Id. at ¶ 235. That tribunal also determined that in order to
qualify, "assistance need not constitute an indispensable element;” rather, it suffices that "the acts of the
accomplice make a significant difference to the commission of the criminal act by the principal." Id. at ¶¶ 209,
233. The acts of the accomplice have the required "[substantial] effect on the commission of the crime" where
43
and a decision of the International Criminal Tribunal for Rwanda, Prosecutor vs. Musema,183
to craft the standard.184
The Ninth Circuit also relied on the same cases with respect to the level of mens rea
required for aiding and abetting liability,185 and summarized the Furundzija standard as
“knowing practical assistance, encouragement, or moral support which has a substantial effect
on the perpetration of the crime,”186 a standard similar to that for aiding and abetting under
U.S. tort law.187
The Ninth Circuit held that a reasonable factfinder could conclude that Unocal's alleged
conduct met the actus reus requirement of aiding and abetting, based on material questions of
fact as to whether forced labor was used in connection with the construction of the pipeline.
Plaintiffs and other witnesses testified that they had been forced to clear the right of way for
the pipeline, build roads and helipads for the project and perform menial tasks, such as hauling
materials and cleaning army camps for the soldiers guarding the pipeline construction.188
"the criminal act most probably would not have occurred in the same way [without] someone acting in the role
that the [accomplice] in fact assumed." Id.
182
ICTY-94-1, ¶ 688 (May 7, 1997), available at http://www.un.org/icty/tadic/trials2/ judgement/index.htm.
183
ICTR-96-13-T (Jan. 27, 2000), available at http://www.ictr.org/ (describing the actus reus of aiding and
abetting as "all acts of assistance in the form of either physical or moral support" that "substantially contribute to
the commission of the crime.") Id. at ¶ 126.
184
See id. at 947, 950.
185
The tribunal in Furundzija held that what is required is actual or constructive (i.e., "reasonable") "knowledge
that [the accomplice's] actions will assist the perpetrator in the commission of the crime." Furundzija at ¶ 245.
Significantly, "it is not necessary for the accomplice to share the mens rea of the perpetrator, in the sense of
positive intention to commit the crime." Id. Nor is it necessary that the aider and abettor know the precise crime
that the principal intends to commit; rather, if the accused "is aware that one of a number of crimes will probably
be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that
crime, and is guilty as an aider and abettor." Id. The Musema standard was largely similar to that of Furundzija.
186
Doe I v. Unocal Corp., 395 F.3d at 951.
187
See Restatement (Second) of Torts § 876 (1979) (stating that "[f]or harm resulting to a third person from the
tortious conduct of another, one is subject to liability if he … (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”). Id.
188
395 F.3d at 952.
44
There was also evidence that, by hiring the military to provide security, Unocal provided
practical assistance in subjecting the plaintiffs to forced labor.
With respect to the “knowledge” mens rea required, the court also held that a
reasonable factfinder could conclude that Unocal's conduct met the standard based on the lower
court’s determinations that Unocal (a) knew forced labor was being utilized, (b) benefited from
the practice and (c) knew or should reasonably have known that its conduct (including the
payments and the instructions where to provide security and build infrastructure) would assist
or encourage the military to subject the plaintiffs to forced labor.189 Genuine issues of material
fact existed as to whether Unocal could be held liable under the Alien Tort Act for aiding and
abetting murder and rape, however.190
Kadić v. Karadžić191
In Kadić, victims of genocide and other dehumanizing human rights violations in
Bosnia-Herzegovina brought actions for violations of international law against the selfproclaimed president of a Bosnian-Serb entity (the Republica Srpska), unrecognized by the
government, under the Alien Tort Claims Act and the TVPA for violations of international law.
The plaintiffs’ claims included accusations of genocide, wrongful death, torture and other
cruel, inhuman and degrading treatment, including rape, assault, battery, forced prostitution
and impregnation, summary execution, and sexual and ethnic inequality. The defense argued
that (a) the act of state and political question doctrines applied; (b) the conduct did not involve
state action; and (c) insufficient service of process. The Second Circuit heard the case on
appeal from the district court’s dismissal for lack of subject matter jurisdiction.
The court divided the plaintiffs’ claims into three categories and decided whether each
category of claims was actionable under either the ATA or the TVPA:
189
See id. at 953.
190
Id. The case was later settled, as announced on December 16, 2004, marking the second ATA case in which a
settlement was reached. See http://www.atimes.com/atimes/Southeast_Asia/FL16Ae01.html (last visited June 20,
2006) for a description of the settlement.
191
70 F.3d 232 (2d Cir. 1995).
45

Genocide. The Second Circuit ruled that genocide is actionable under the ATA regardless
of the existence or absence of state action. In doing so, the court cited the universal
condemnation of genocide, its recognition as an international legal violation regardless of
state action, and the treatment of genocide under such instruments as the Convention on the
Prevention and Punishment of the Crime of Genocide and the Agreement and Charter
Establishing the Nuremberg War Crimes Tribunal.192

War Crimes. The court held that acts of murder, rape, torture, and arbitrary detention of
civilians, “committed in the course of hostilities,” violate the laws of war and that all
“parties” to a conflict, whether state actors or not, “are obliged to adhere to these most
fundamental requirements of the laws of war.”193 Thus, non-state actors may be liable for
war crimes under ATA.

Torture and summary execution. The opinion reaffirmed the holding of Filartiga and other
cases that claims of torture, unlike the other charges, must put forth allegations of state
action.
In addressing the question of whether a party may be a state actor for ATA purposes
without being formally recognized as a state, the Second Circuit ruled that “[t]he inquiry
[regarding state action]...is whether a person purporting to wield official power has exceeded
internationally recognized standards of civilized conduct, not whether statehood in all its
formal aspects exists.”194 However, non-state actors may also be held liable for a range of
international legal violations if they act “in concert with” a state.195 The Second Circuit held
that the “color of law” jurisprudence of § 1983 civil rights actions should guide courts in
determining state action for ATA purposes.
The court held also that the case at bar was not a political question, nor was it
unjusticiable for other reasons. The question was committed to the judiciary for settlement by
192
Id. at 241.
193
Id. at 242 (citing the First Geneva Convention).
194
Id. at 245.
195
Id.
46
such acts as the ATA, and there was no prior executive action that could lead to an
embarrassing conflict between the co-equal branches.196
All of the plaintiff’s claims survived defendant’s motion for summary judgment.
The Presbyterian Church of Sudan v. Talisman Energy, Inc.197
Plaintiffs sued the Republic of Sudan and Talisman Energy, Inc., a Canadian oil
corporation with operations around the world and shares traded on the New York Stock
Exchange, for committing acts of genocide, war crimes, and crimes against humanity. The
plaintiffs claimed that Talisman aided and abetted the genocidal campaign of the Sudanese
government against non-Muslim African Sudanese.
According to the plaintiffs, the Sudanese government promoted an oil development
policy which was inextricably linked to its violent campaign against ethnic and religious
minorities, and that Talisman’s work with the government constituted complicity in
committing genocide.198 Plaintiffs alleged that Talisman hired its own military advisors to
coordinate military strategy with the government to plan security for the oil fields and related
facilities.199 According to the plaintiffs, Talisman was aware that the government’s
‘protection’ of oil operations entailed genocide, including the murder of substantial numbers of
civilians, the destruction of thousands of civilian villages and at least seventeen churches in the
areas around Talisman’s oil fields, and the capture and enslavement of civilians who survived
the military attacks.200 Furthermore, Talisman allegedly supported the genocidal campaign
indirectly by building a network of roads and airplane runways used by the government to
launch military offensives against civilian targets and knew that the runway was used for
196
Id. at 250 (stating that “our decision in Filártiga established that universally 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”). Id.
197
Presbyterian Church of Sudan v. Talisman Energy, Inc., 244. F. Supp. 2d 289 (S.D.N.Y. 2003).
198
244 F. Supp. 2d at 299.
199
Id. at 300.
200
Id. at 301.
47
military purposes such as launching bombing attacks on civilian targets and United Nations
relief sites.201
Plaintiffs brought claims on behalf of themselves and on behalf of all non-Muslim
African Sudanese residing in areas within fifty miles of all oil concession areas and
transportation routes in Sudan.202 Named plaintiffs, including a pastor of the Presbyterian
Church, had lived in villages which were attacked as part of the government’s “ethnic
cleansing” campaign, and several reside in the United States as refugees at present. Another
plaintiff was a United States not-for-profit corporation whose members are U.S. citizens or
resident aliens who fled areas of Sudan around Talisman’s oil concessions.203
Plaintiffs sought (i) an injunction restraining defendants from continuing to cooperate
in committing “ethnic cleansing” against non-Muslim African Sudanese; (ii) compensatory
damages from both defendants; (iii) punitive damages from Talisman and (iv) attorneys fees.
Talisman moved to dismiss on the basis of (i) lack of subject matter jurisdiction; (ii) lack of
personal jurisdiction; (iii) lack of standing; (iv) forum non conveniens; (v) international comity;
(vi) act of state doctrine; (vii) political question doctrine; (viii) failure to join necessary and
indispensable parties; and (ix) on the grounds that equity does not require a useless act.204 The
more relevant issues decided by the court are discussed in further detail below.
Plaintiffs alleged acts of genocide, war crimes, torture, and enslavement. There was no
dispute that these acts violate universally-recognized norms of international law, or jus
cogens.205 The court rejected Talisman’s argument that corporations are not legally capable of
violating international law. Numerous cases in the Second Circuit, as well as cases in other
circuits, have held that corporations can be liable for jus cogens violations (though the
Supreme Court has not spoken directly on this issue).206
201
Id.
202
Id. at 303.
203
Presbyterian Church of Sudan, 244 F. Supp. 2d at 299.
204
Id. at 303.
205
Id. at 305.
206
Id. at 308-315 (summarizing Filártiga, Kadić, Wiwa, Bigio, Doe v. Unocal, and others). The court also cited
international precedent that corporations may be liable under international law for jus cogens violations, id. at
48
The court rejected Talisman’s argument that, even if corporations can be held liable for
a violation of the law of nations, plaintiffs failed to adequately allege such a violation against
Talisman.207 Looking to international law, the court determined that aiding and abetting and
conspiratorial allegations are actionable theories of civil liability under the ATA.208 Nearly all
previous Second Circuit decisions allowed claims brought under the ATA based on a theory of
aiding and abetting.209 The concept of complicit liability for conspiracy or aiding and abetting
has long been recognized in international law, especially in the specific context of genocide
and war crimes.210 Because plaintiffs alleged that Talisman’s assistance was direct and
substantial, the court denied defendants’ motions to dismiss claims based on jus cogens
violations.
Talisman argued that the named plaintiffs suffered only displacement and confiscation
of property, injuries that do not constitute violations of the law of nations.211 However, the
allegations of displacement and confiscation of property occurred during the alleged
commission of genocide, war crimes, and crimes against humanity. The court thus rejected
Talisman’s argument that the Presbyterian Church or other individual plaintiffs were “solely”
alleging property loss.212 Expropriation or property destruction, committed as part of genocide
or war crimes, may violate the law of nations.213
The court rejected Talisman’s argument that it could only be liable for allegations of
torture and mistreatment of ethnic and religious minorities and their property if it acted under
color of state law. There is no state action requirement in the Second Circuit if the torture is
315-316, and noted several international treaties (such as the Paris Convention on Third Party Liability in the
Field of Nuclear Energy and the International Convention on Civil Liability for Oil Pollution Damage) which
contemplate corporate liability for certain acts. Id. at 317.
207
Presbyterian Church of Sudan v. Talisman Energy, Inc., 244. F. Supp. 2d 289, 319 (S.D.N.Y. 2003).
208
Id. at 320.
209
Presbyterian Church of Sudan, 244 F. Supp. 2d at 321.
210
Id. at 322.
211
Id. at 324.
212
Id. at 324-25.
213
Id. at 325.
49
committed in the course of genocide or war crimes.214 As in Wiwa, plaintiffs alleged genocide
and adequately pled a substantial degree of cooperation between Talisman and Sudan.
Therefore, Talisman could be treated as a state actor for purposes of ATA.215
The court also denied the motion to dismiss for lack of standing, in part because it
rejected Talisman’s contention that the alleged injuries were not “fairly traceable” to
Talisman’s actions. Incitement to genocide, as well as complicity in gross human rights
violations, violates international law and therefore caused harm to the plaintiff.216 By aiding
the government’s ethnic cleansing campaign, Talisman’s acts were deemed to be directly
linked to plaintiffs’ injuries.
Sosa v. Alvarez-Machain217
Plaintiff, a Mexican national acquitted of murder after being abducted and transported
to the United States to face prosecution, brought an action under the ATA against the United
States, U.S. Drug Enforcement Agency (DEA) agents, a former Mexican policeman and
Mexican civilians, alleging that his abduction violated his human rights. Plaintiff claimed that
his arbitrary detention clearly violated international law.
The Supreme Court held, that ATA was a “jurisdictional” statue, “in the sense of
addressing the power of the courts to entertain cases concerned with a certain subject,” and did
not itself provide a cause of action for violations of international law."218 However, the Court
also held that the law was not intended to lie “fallow.” In empowering the district courts to
recognize well-developed international legal causes of action, the Court stated that “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.”219
214
Presbyterian Church of Sudan v. Talisman Energy, Inc., 244. F. Supp. 2d 289, 328 (S.D.N.Y. 2003).
215
Id. at 328-29.
216
Id. at 333.
217
Sosa v. Alvarez-Machain, 542 U.S. 692, 124 (2004).
218
Sosa, 542 U.S. at 713.
219
Id. at 724.
50
The Court cautioned that the bar to recognizing causes of action based on international
law violations is high, and 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.”220 However, the Court gave little indication of how courts would
go about recognizing such international norms. It did suggest that such norms should be
“specific, universal, and obligatory,”221 and that the violator’s actions should make him or her
“an enemy of all mankind.”222 On the specific claim, the Court held that an “illegal detention
of less than one day” did not violate international norms. As such, plaintiff’s claims were
rejected and the Ninth Circuit Court of Appeals decisions on all claims were reversed.
In re South African Apartheid Litigation223
Basing its decision largely on Sosa, the District Court for the Southern District of New
York dismissed a multidistrict litigation for violations of international law brought under the
Alien Tort Claims Act for lack of subject matter jurisdiction.
Three groups of plaintiffs filed claims in eight different federal courts (which were
consolidated in the Southern District of New York) against a number of multinational
corporations doing business in apartheid South Africa, including some of the world’s largest
banks, utilities, automobile manufacturers, and consumer products companies.224 Plaintiffs
alleged that the defendants violated international law by doing business with a regime that
relegated Africans to substandard living conditions and a brutal and vicious policy of
repression.225 Defendant corporations benefited from the apartheid system’s glut of cheap
labor, and defendants frequently supplied resources such as technology, money, and oil to the
South African government or entities controlled by the government. Defendants had other
contacts with the government: some were required to provide high levels of security so as to
protect against civil unrest and African uprisings; some were required to provide storage
220
Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).
221
Id. at 732 (quoting In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)).
222
Id. (quoting Filártiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980)).
223
In Re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004).
224
Id. at 542 n. 3.
225
Id. at 543-44.
51
facilities for arms and to cooperate with the South African Defense Force to provide local
defense of the area. After the United Nations deemed apartheid a crime against humanity,
many defendant corporations publicly withdrew from South Africa while maintaining
profitable entities there that continued to assist the regime by providing goods and services. 226
Two groups of plaintiffs brought these actions on behalf of the class of individuals who
(i) lived in South Africa at any time between 1948 and the present and (ii) suffered damages as
a result of apartheid. A third group of plaintiffs represented the Khulumani Support Group and
its 32,700 members, as well as individual plaintiffs who suffered from the crimes of the
apartheid regime. Plaintiffs sought equitable relief, including production of documents related
to activities of the defendants in South Africa, the creation of an international historical
commission and the creation of affirmative action and educational programs. They also sought
injunctive relief to prevent defendants from destroying documents relating to their investment
in South Africa. One group of plaintiffs also sought monetary relief, including restitution and
disgorgement of all monies linked to aiding, conspiring with or benefiting from apartheid
South Africa. The other groups of plaintiffs sought compensatory and punitive damages in
excess of $400,000,000,000.227
Plaintiffs alleged several international law violations, including forced labor, genocide,
torture, sexual assault, unlawful detention, extrajudicial killings, war crimes, and racial
discrimination. Plaintiffs linked defendants to these violations of international law by alleging
that (i) defendants engaged in state action by acting under the color of law in perpetrating these
international law violations; (2) defendants aided and abetted the apartheid regime in the
commission of those violations; and (3) defendants’ business activities alone were sufficient to
make out an international law violation.228 The court, applying the Sosa test for subject matter
jurisdiction over ATA claims, rejected each of these claims.
Plaintiffs did not plead facts that would allow the court to find under Bigio and Kadić
that defendants had acted under color of state law in perpetrating the alleged crimes. Plaintiffs
226
Id. at 545.
227
In Re South African Apartheid Litigation, 346 F. Supp. 2d 538, 545–46 (S.D.N.Y. 2004).
228
Id. at 548.
52
did not plead that defendants acted “together with state officials or with significant state aid” as
the ATA requires. At most, by engaging in business with the South African regime,
defendants benefited from the unlawful state action of the apartheid government.229 The court
distinguished this case from Wiwa on the basis that the Wiwa defendants had made payments to
the military, contracted to purchase weapons for the military, coordinated raids on the
plaintiffs, and paid the military to violently respond to opposition. In the South African
litigation, at most defendants had followed the national security act and made necessary
preparations to defend their premises from uprisings; that activity alone does not constitute
joint action with the military. All other allegations relate to business activity which, as the
Bigio court held, does not constitute state action. 230
The court also dismissed claims brought by one set of plaintiffs under the TVPA
because the defendants were not found to be state actors. The court distinguished the case
from Wiwa, where defendants were found to be acting under color of law in preparation of
torture and extrajudicial killings.231
Under Sosa, because defendants did not engage in state action, plaintiffs needed to
show that either aiding and abetting international law violations or doing business in apartheid
South Africa are “violations of the law of nations that are ‘accepted by the civilized world and
defined with a specificity comparable to the features of 18th-century paradigms’ such as piracy
and crimes against ambassadors.”232 The Second Circuit requires that the norm be “a legal
obligation, and not acceded to merely for moral or political reasons. Also, the norm must be
sufficiently definite and not so general as to be simply ‘aspirational.’”233
Here, the court rejected plaintiffs’ reliance on the International Criminal Tribunals for
the former Yugoslavia and Rwanda, the Nuremberg trials, the International Convention on the
Suppression and Punishment of the Crime of Apartheid, and earlier U.S. case law which held
229
Id. at 548-49.
230
Id. at 549.
231
Id. at 555.
232
In Re South African Apartheid Litigation, 346 F. Supp. 2d 538, 549 (S.D.N.Y. 2004) (quoting Sosa v. Alvarez-
Mechain, 124 S.Ct. 2739, 2761-62 (2004)).
233
Id.
53
that aiding and abetting international law violations is itself an international law violation that
is universally accepted as a legal obligation. None of these sources, the court concluded,
“establishes a clearly defined norm for ATA purposes.”234 The International Tribunal rulings
are not binding sources of international law. The court declined to follow Presbyterian
Church, citing other U.S. precedent holding that where Congress has not explicitly provided
for complicit liability in civil causes of actions, liability should not be inferred. The ATA does
not explicitly provide for aider and abettor liability, and so the court would not infer such a
basis for an ATA claim. Because the theory that aiding and abetting international law
violations is itself a violation is not provided for in ATA nor is a “clearly defined norm,” the
court dismissed the claim for lack of subject matter jurisdiction.235
The court also rejected plaintiffs’ arguments that doing business with apartheid South
Africa was a violation of international law. Plaintiffs relied on the U.N. Charter, the Genocide
Convention, the Convention Against Torture, the International Covenant on Civil and Political
Rights (ICCPR), and the Apartheid Convention to establish that doing business with the
apartheid regime violated the law of nations. However, because the United States has not
deemed these treaties to be self-executing, no private liability exists under the U.N.
Conventions in U.S. courts. The ICCPR also deals primarily with state actors and therefore
was inapplicable to the actions of defendants in this case. The other treaties cited by plaintiffs
were held not to create binding international law due to the lack of adoption by most world
powers.236 Furthermore, the court noted, the United States Congress supported and encouraged
business investment in apartheid South Africa.237 The court therefore found no cause of action
under international law for any of plaintiffs’ claims and dismissed for lack of subject matter
jurisdiction.
Doe I v. Exxon Mobil Corporation238
234
Id. at 549–550.
235
Id. at 550.
236
Id. at 552.
237
Id. at 554.
238
Doe I v. Exxon Mobil Corp., 393 F.Supp. 2d 20 (D. D.C. 2005).
54
Plaintiffs, Indonesian citizens, sued Exxon Mobil and a number of other oil companies
in June 2001, alleging that the companies contracted with a unit of the Indonesian national
army to provide security for a natural gas extraction pipeline and facility in Arun, Indonesia
during an on-going conflict between the Indonesian government and Achense rebels.239 As
such, plaintiffs claimed that defendants were liable for the actions of the Indonesian soldiers as
an aider and abettor, a joint actor/joint venturer, or as a proximate cause of the alleged
misconduct.240 Defendants filed a motion to dismiss, and while that was pending, the U.S.
State Department filed a Statement of Interest. The Statement of Interest repeated the
Department’s position that “adjudication of the lawsuit at this time would in fact risk a
potentially serious adverse impact on significant interests of the United States, including
interests related directly to the on-going struggle against international terrorism.”241 The
parties both filed additional briefing on the implications of the State Department’s submission,
and in September 2002 exchanged interrogatories and requests for preservation of documents.
In June 2004, the Supreme Court reached its decision in Sosa, which was highly relevant to the
case, and reviewed at length in the opinion.242 Based on the Sosa holding that courts still have
some ability to determine the field of international law violations cognizable under the ATA,
the court held that the “proper degree of deference to the views of the Executive turns on the
actual intrusiveness of the litigation” and proceeded to identify any specific actions that would
support proceeding with the case at hand.243
Plaintiffs alleged a number of potential violations of the ATA, including genocide,
torture, crimes against humanity, arbitrary detention (kidnapping), extrajudicial killing, and
sexual violence. The court evaluated the merits of the claims more thoroughly than would
otherwise be required in a “less sensitive” case under the standard set forth in Walsh v. Ford
239
Id. at 22.
240
Id.
241
Id.
242
Id.
243
Id. at 23.
55
Motor Co.244 Following In re South African Apartheid Litig., the court held that the defendants
could not be held liable for “aiding and abetting” violations of international law under the
ATA.245
On the claims that Exxon was directly liable for violations of the ATA under the theory
of complicity, the court declined to adjudicate the claims of genocide and crimes against
humanity because “assessing whether Exxon is liable for these international law violations
would be an impermissible intrusion in Indonesia’s internal affairs” because, under the facts of
the case, it would have to be determined whether Indonesia’s military was engaged in a plan to
eliminate segments of the population.246
In its analysis of the claims of complicity in torture, arbitrary detention, and
extrajudicial killing, the court declined to apply color of law (42 U.S.C. § 1983) jurisprudence
to hold non-state actors liable for violations of international law. Because of the difficulties the
court identified as inherent to determining when a party acts under the “color of law,” the
“vigilant doorkeeping” mandated by Sosa247 regarding the scope of liability under the ATA
would also become problematic.248 While the court briefly addressed these doctrinal issues,
they do not form the basis of the opinion because plaintiffs’ claims failed to adequately address
the two actual elements upon which the color of law analysis can be based: joint action, an
agreement or understanding to deprive a party of their constitutional rights, and proximate
cause, the theory that the defendants proximately caused the human rights violation by
“directing and controlling” the actions of the violators.249 The court also dismissed the
plaintiffs’ TVPA claim because the defendants were not acting under the color of law, and by
244
Exxon, 393 F. Supp. 2d 20, 24 (D.D.C. 2005) (citing Walsh v. Ford Motor Co., 588 F. Supp. 1513, 1519
(D.D.C. 1984) (citation omitted), vacated on other grounds by 807 F.2d 1000 (D.C. Cir. 1986).
245
Id.
246
Id. at 25.
247
See Sosa, 542 U.S. 692, 746 (2004).
248
Id. at 26.
249
Id. at 27.
56
the clear language of the Act, the party must “‘act under actual or apparent authority, or color
of law’” to be liable.250
Following disposition of the federal statutory claims, the court evaluated plaintiffs’
state law tort claims.251 While defendants filed motions to dismiss on the grounds of
justiciability, forum non conveniens, lack of personal jurisdiction, and the statute of limitations,
the court denied the motions without prejudice and allowed the plantiff’s claims to proceed
(subject to orders directing plaintiffs to plead an independent basis for subject matter
jurisdiction and to indicate the state of the United States whose tort law should apply).252 In
March 2006, the court granted the plaintiff’s motion to amend the complaint to plead diversity
jurisdiction, pursuant to 28 U.S.C. § 1332(a)(2), which would establish subject matter
jurisdiction over the remaining tort claims.253 Having briefed the issue of the applicable law to
the state tort claims, the court held that the law of the forum state, the District of Columbia,
would apply to all tort claims except that Delaware law would apply to the wrongful death
claim.254
VII. CONCLUSION
A number of bases exist for plaintiffs to sue non-state actors for overseas violations of
human rights in U.S. courts. The scope of the primary statutory basis for jurisdiction, the Alien
Tort Claims Act, is not entirely clear under existing law and will continue to be defined
through additional jurisprudence. The boundaries of other potential bases of jurisdiction,
including RICO, state tort litigation, and liability under 28 U.S.C. § 1331, will likely continue
to develop. These bases of jurisdiction will likely only apply to a small number of cases,
depending on how broadly the courts define the scope of the ATA. Influences from other parts
of U.S. government, including the Executive branch, and additional statutory guidance from
250
Exxon, 393 F. Supp. 2d at 28 (citation omitted).
251
Id.
252
Id. at 30.
253
Memorandum and Order, Doe I v. Exxon Mobil Corp., No. 01-Civ-1357 (LFO) (D.D.C. March 2, 2006).
254
Id.
57
Congress, may also impact the development of human rights litigation and the accountability
of non-state actors for human rights violations in U.S. courts.
58