University of Minnesota



 

David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001) [“Coursebook”]

Fourth Supplement to Chapter 14: U.S. Adjudicative Remedies for Violations Occurring Outside the U.S. (September 30, 2005) ·



 

 

C. Alien Tort Litigation

 

  1. Jurisdiction (pp. 763-80)

 

In Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 2769, 159 L.Ed.2d 718 (2004), the U.S. Supreme Court, 9-0, held that a single illegal detention of less than a day, followed by a transfer of custody to lawful authorities and a prompt arraignment did not violate any treaty or norm of customary international law, and, thus, the plaintiff did not have a valid claim for damages under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.

 

In reaching this holding, the Court, 9-0, in an opinion by Justice Souter, reached the following conclusions regarding the ATS:

 

 

 

 

The opinion for the Court, 6 to 3, went on to hold that customary international law was part of federal common law, that such international law constituted the customs and usages of civilized nations, as evidenced by the works of well qualified jurists and commentators, and that such international law to give rise to a cause of action for damages under the ATS must have the definite content and acceptance among civilized nations equivalent to the late 18 th century’s ban on piracy, infringements on the rights of ambassadors. and violation of safe conduct. ( Id. at 2764-67.)

 

The Court also noted, 6-3, these reasons for “judicial caution” in creating or recognizing such claims in the common law: (1) the concept of common law has radically changed from 1789 to one acknowledging that such law is created or made; (2) common law (since Eire R. Co. v. Tompkins in 1938) is now generally a matter of state law, leaving federal common law to “havens of specialty;” (3) the Supreme Court recently and repeatedly has said that creation of private causes of action generally is better left to legislative judgment; (4) creation of common law causes of action for torts against the law of nations can affect foreign relations which is the responsibility of other branches of government; and (5) Congress has not specifically authorized or encouraged the courts to create such causes of action (id. at 2762-64).

 

In this regard, the opinion, 6-3, said that the lower federal courts since 1980 generally had taken this approach to recognizing such causes of action. It cited the Second Circuit’s opinion in Filartiga v. Pe ñ a-Irala , 630 F.2d 876 (2d Cir. 1980) that the torturer was like the pirate and slave trader (124 S. Ct. at 2766). The Court also suggested that what was sufficiently definite to be recognized as such a tort as a matter of common law could change over time, citing conflicting lower court opinions, separated by 11 years, on the issue of whether a private actor like a corporation or individual could be liable for such a tort (id. at 2766, n. 20). In addition, the Court suggested that exhaustion of domestic remedies and case-specific deference to the political branches could be additional limitations on creation or recognition of such torts. ( Id. at 2766, n.21).

 

In resolving Sosa, the Court also evaluated the relevance of certain international human rights instruments. On the one hand, the Universal Declaration of Human Rights, the Court said, “does not of its own force impose obligations as a matter of international law” (id. at 2767). The International Covenant on Civil and Political Rights, on the other hand, did impose obligations on the United States because of its ratification, but that ratification was “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts” (id. at 2767). Indeed, the more general use of such understandings or declarations that certain treaties were not self-executing was recognized by the Court earlier in its opinion (id. at 2763).

 

NOTES AND QUESTIONS

 

 

 

 

 

 

 

 

 

 

See also Arndt v. UBS AG, 342 F. Supp. 2d 132, 139-41 (E.D.N.Y. 2004)(claims for fraud, unjust enrichment. conversion and misrepresentation are not violations of international law for ATS claims); In re South African Apartheid Litigation v. Citigroup, Inc., 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2004)(aiding and abetting apartheid was not actionable under ATS).)

 

In reaching these conclusions, the district courts have held that non-self-executing treaties do not establish such norms. ( Mujica, 2005 WL 1962635, at 10.) But the courts have relied upon the Nuremberg War Crimes Tribunal Charter, the international criminal tribunals for the former Yugoslavia (“ICTY”) and for Rwanda (“ICTR”), the Rome Statute for the International Criminal Court (“ICC”), the Torture Victims Protection Act (“TVPA”), the War Crimes Act (18 U.S.C. § 2441 (c )) and pre-Sosa lower court precedents. ( Mujica, 2005 WL 1962635 at 10-14; Saravia, 348 F. Supp. 2d at 1153-57.)

 

The lower courts have continued to hold that ATS (and TVPA) claims include liability for indirect action (conspirators and aiders and abettors). ( Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157-58 (11 th Cir. 2005); Saravia, 348 F. Supp. 2d at 1148-53.)

 

The ATS cases starting with Filartiga can now be seen in three broad groups of defendants: (i) foreign government officials; (ii) corporations; and (iii) U.S. government officials.

 

Foreign government officials defendants. The initial use of the ATS was by foreign individuals suing foreign government officials acting under color of law. (Coursebook at 764-80, 788; Sandra Coliver, Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using Internationnal Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 173-89; (2005) [“Coliver”]; Julian G. Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 Emory Intl L. Rev. 105, 107-08 (2005)(“Ku”).) That use has continued with the previously mentioned Saravia and Qi cases. Others are Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) ($140 million judgment), Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153-56 (11 th Cir. 2005) (per curiam), and Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004).)

 

Sandra Coliver, the Executive Director of the Center for Justice and Accountability that has brought many of the ATS cases in recent years, says that as of early 2005 at least 16 foreign human rights individual violators had been sued successfully under the statute. She argues that these cases have contributed to a worldwide movement against impunity by “(1) helping to ensure that the United States does not remain a safe haven for such perpetrators, (2) holding individual perpetrators accountable for human rights abuses, (3) providing the victims with some sense of official acknowledgement and reparation, (4) contributing to the development of international human rights law, . . . (5) building a constituency in the United States that supports the application of international law in such cases and an awareness about human rights violations in countries in all regions of the world . . . (6) [helping to] create a climate of deterrence and (7) [helping to] catalyze efforts in several countries to prosecute their own human rights abusers.” (Coliver at 174-86.)

 

Corporate defendants. A second phase or wave of suits under the ATS was directed at U.S. and foreign corporate defendants for aiding and abetting foreign governments in their human rights violations. (E.g., Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process at 790-94 (3d ed. 2001); Aldana v. Del Monte Fresh Produce, N.A., supra; Agunda v. Texico, Inc., 303 F.3d 470 (2d Cir. 2002); Mujica, supra; Presbyterian Church of Sudan v. Talisman Energy, Inc., supra; Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002); Coliver, 19 Emory Int’l L. Rev. at 207-18; Ku, 19 Emory Int’l L. Rev. at 109-10.)

 

The litigation against Unocal Corp. and Total S.A. was cited by the Coursebook as an example of this type of ATS claim. (Coursebook at 791-93, nn. 16-18.) There have been further developments in that litigation:

 

 

 

 

 

 

ExxonMobil litigation. In the meantime, another case against an oil company (Exxon Mobil Corp.) for alleged participation in human rights abuses in Indonesia proceeds in the U. S. District Court for the District of Colombia. In connection with a motion to dismiss the complaint, the U.S. Government advised the court that the suit could damage relations with Indonesia and “impair cooperation with the U.S. across the full spectrum of diplomatic initiatives, including counterterrorism.” Some U.S. Senators and Congresspersons, however, warned the State Department that such intervention by the Government in this case would send the wrong message of impunity for human rights abuses. The dismissal motion apparently is still pending. (See Docket Sheets, Doe v. ExxonMobil Corp., No. 01-CV-1357 (D.C.D.C.); International Labor Rights Fund, ExxonMobil: Human Rights Abuses in Aceh, Indonesia, http://www.laborrights.org; Timothy Mapes, Rights Suit May Undermine War on Terror, U.S. Warns, Wall S. J., Aug. 7, 2002; Peter Waldman & Timothy Mapes, White House Sets News Hurdles For Suits Over Rights Abuses, Wall S. J., Aug. 8, 2002; Jane Perlez, U.S. Backs Oil Giant on Lawsuit in Indonesia, New York Times, Aug. 8, 2002; Editorial, Oily Diplomacy , New York Times, Aug. 19, 2002; Mary McGrory, Powell’s Awkward Position, Washington Post, Aug. 29, 2002, at A31; Letter, to Secretary of State Powell from Amnesty Int’l and 12 other groups, Aug. 26, 2002, www.stopexxonmobil.org/statis/SEMletter_powell.html.)

 

In Flores v. Southern Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003), the Second Circuit, pre- Sosa, affirmed the dismissal of a complaint under the ATCA by Peruvian residents against a U.S. mining company for pollution at its Peruvian mine that allegedly caused severe lung disease. In so doing, the court adhered to its decision in Filartiga v. Peñ a-Irala, 630 F.2d

 

The Second Circuit in Flores stated that “the law of nations” in the ATCA refers to customary international law, i.e., those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern. (343 F.3d at 153-56.) The primary source of same is the formal lawmaking and official actions of States, as Article 38 of the Statute of the International Court of Justice prescribes. Excluded were treaties that set forth broad principles without specific rules. Only secondarily will the courts look to the works of scholars. ( Id. at 156-58.)

 

Applying these guidelines to the specific issues in the case, the court in Flores held that the rights to life and health in the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Political and Civil Rights; the U.N. Convention on the Rights of the Child; the American Convention on Human Rights; the American Declaration of the Rights and Duties of Man; and UN General Assembly resolutions did not set forth specific rules. Moreover, said the court, some of these instruments were not treaties; some were treaties not ratified by the U.S.; and others were not self-executing treaties of the U.S. Therefore, they were not a legitimate source of customary international law. ( Id. at 162-69.) Nor did decisions by the International Court of Justice and the European Court of Human Rights provide such rules. ( Id. at 169-70.)

 

The use of the ATS against U.S. corporations for their conduct overseas has been criticized on the ground that it could do enormous damage to U.S. foreign trade and investment. (See Gary Clyde Hufbauer & Nicholas K. Mitrokostas, Awakening Monster: the Alien Tort Statute of 1789 (Inst. of Int’l Econ., 2003); Emeka Duruigbo, The Economic Cost of Alien Tort Litigation: A Response to the Awakening Monster: The Alien Tort Statute of 1789, 14 Minn. J. Global Trade 1, 25-30 (2004). But see Steven M. Schneebaum, The Paquete Habana Sails On: International Law in U.S. Courts After Sosa, 19 Emory Intl L. Rev. 81, 95-98 (2005).)

 

U.S. government officials defendants. The third phase or wave of ATS litigation involves foreign plaintiffs suing U.S. government officials over alleged human rights abuses. These cases are still pending in the lower courts after the Supreme Court, 6-3, in Rasul v. Bush, 542 U.S. 466, 475-78 (2004), upheld the right of foreign detainees at the U.S. base in Guantanamo Bay, Cuba to have access to U.S. courts to contest their detention, including actions under the ATS. See generally Coliver, 19 Emory Int’l L. Rev. at 192-99; Ku, 19 Emory Int’l L. Rev. at 110-14; Ku, 19 Emory Int’l L. Rev. at 110-14; Center for Constitutional Rights, Legal Docket—September 11 th, http://www.ccr-ny.org/v2/legal/september_11th/september_11th.asp0; Human Rights First, The Case Against Secretary Rumsfeld, http://www.humanrightsfirst.org/us_law/etn/lawsuit/index.asp .) As of the date of this Supplement, the following decisions have been issued in these cases:

 

 

 

 

The Coursebook noted that a lower federal court had held that international human rights was part of federal common law. (Coursebook at 772, n.12.) As previously stated, the

U.S. Supreme Court has held, 6-3, that federal common law is a substantive source of international human rights law. ( Sosa, 124 S. Ct. at 2464-67.)

 

The Coursebook referred to a preliminary district court decision in Jama v. INS, 22 F. Supp. 2d 353 (D.N.J. 1998), in which undocumented aliens at an INS detention facility operated by a private contractor sued the INS, the contractor, and the latter’s employees. (Coursebook at 774. n.16.) More recently the court denied a summary judgment motion by the contractor and its employees. ( Jama v. U.S.I.N.S., 343 F. Supp. 2d at 338.) In so doing, the court held that inhumane treatment of a large number of persons detained without charges violated international law for ATS purposes. ( Id. at 361.)

 

The Coursebook noted that the Second Circuit had held that private entities could be liable under Bivens and that the U.S. Supreme Court had granted a petition for a writ of certiorari. ( Malesko v. Correctional Services Corp., 229 F.3d 374 (2d Cir. 2000), cert. granted, 2001 U.S. LEXIS 1967 (2001); Coursebook at 774, n.16.) In Correctional Services Corp. v. Malesko, 122 S. Ct. 515 (2001), the United States Supreme Court held, 5 to 4, that there was no implied right of action, pursuant to Bivens v. Six Unknown Named FBI Agents, 403 U.S. 388 (1971), for damages against private entities that allegedly engaged in unconstitutional conduct while acting under color of federal law.

 

Proposed Convention on Enforcement of Court Judgments. The Coursebook pointed out that a draft convention for recognition and enforcement of foreign court judgments had a provision allowing a court of a nation state to exercise jurisdiction over an alien for certain international human rights violations (e.g., genocide, a crime against humanity) occurring in another country. (Coursebook at 774-75, n.17.) That situation has changed:

 

 

As the Coursebook notes, personal jurisdiction over the defendant is necessary for an ATS (or TVPA) claim. (Coursebook at 780, n.5.) This affirmative defense has been an issue in recent ATS cases. ( Burnett v. Al Barak Invest. & Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2003)(upholding personal jurisdiction over three defendants and grant of discovery re personal jurisdiction over another defendant); In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005)(dismissal of nine defendants for lack of personal jurisdiction); Saravia, 348 F. Supp. 2d at 1142-43.)

 

2. International Rules Governing Rape and Forced Eviction (pp. 781-94)

 

As previously mentioned, there have been significant developments in the Unocal litigation that was mentioned in the Coursebook. (Compare Coursebook at 791-93, nn. 16, 18 with pp. 7-8 supra.)

 

The Coursebook cited U.S. cases recognizing rape as an actionable tort under the ATS. (Coursebok at 773, n.14; id. at 788, n.6; id. at 791, n.16.) There are recent cases seemingly coming to the same conclusion. ( Mujica, 2005 WL 1962635, at 13, 15 (sexual abuse); Doe v. Qi, 349 F. Supp. 2d at 1320-25 (sexual abuse).)

 

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  1. Foreign Sovereign Immunities Act

 

In Burnett v. Al Baraka Invest. & Dev. Corp., 292 F. Supp. 2d 9 (D.D.C. 2003), the court relied upon the FSIA in dismissing claims against high Saudi government officials arising out of the 9/11 attacks. In Doe v. Qi,supra, the court held that there was no FSIA immunity for Chinese local government officials who had been accused of abusing practitioners of Falun Gong because the Chinese national government publicly had disclaimed such actions and thus deprived them of any argument that they were acting under color of law.

 

  1. Head of State and Diplomatic Immunity.

 

In Tachiona v. United States, 386 F.3d 205 (2d Cir.2004), the court affirmed the dismissal of a case against Zimbabwe’s President and Foreign Minister on the grounds of head of state and diplomatic immunity. In addition, the court reversed the entry of a default judgment against their political party, holding that the service of process on the two officials as agents of the party was a nullity because of their immunity. ( Id. at 214-21.)

 

  1. The Act of State Doctrine.

 

In Mujica v. Occidental Pet. Corp., supra, several Colombians sued a U.S. company that provided security for a Colombian oil pipeline owned by the other U.S. corporate defendant. The first company had directed the Colombian Air Force in its bombing of a Colombian town. The court held that the act of state doctrine did not apply because the ATS claims were based on binding international norms and because the Colombian Air Force allegedly breached these norms and thereby was not acting in the public interest and because these reasons outweighed any adverse foreign policy implications. ( Id. at 22-23.)

 

In Doe v. Qi, supra, however, the court concluded that the act of state doctrine barred claims for damages and injunctive relief against Chinese local government officials for mistreatment of Falun Gong practitioners. But the doctrine, held the court, did not bar the claims for declaratory relief. (349 F. Supp. 2d at 1288-1306.)

 

In Sarei v. Rio Tinto PLC, supra, the district court dismissed ATS claims regarding environmental and racial discrimination, but not war crimes and crimes against humanity on the act of state doctrine.

 

  1. Statute of Limitations, Damages and Choice of Law

 

Courts have continued to borrow the 10-year limitations period in the federal TVPA for purposes of ATS claims. (Coursebook, at 817, n.13; Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153-56 (11 th Cir. 2005 (per curiam); Arce v. Garcia, 400 F.3d 1340, 1345-46 (11 th Cir. 2005); Doe v. Saravia, 348 F. Supp.2d at 1146-48.) These cases also held that the well-established doctrine for equitable tolling of the limitations period applied for ATS and TVPA claims.

 

 

 

The Coursebook mentioned the political question doctrine as a potential affirmative defense to an ATS claim. (Coursebook at 817, n.4.) That doctrine has been an issue in several recent ATS cases. ( Schneider v. Kissinger, 412 F.3d 190 (D.D.C. 2005)(dismissal of suit against Henry Kissinger, former National Security Advisor to President Nixon, by children and estate of Chilean general who was killed in the 1970 Chilean coup d’etat); Mujica, 2005 WL 1962635, at 23-27(dismissal); Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846, at 8 (S.D.N.Y. 2005) (rejection of such a contention with respect to a suit against the Republic of Sudan and a Canadian energy company even though the U.S. and Canadian governments had requested a dismissal); Sarei v. Rio Tinto PLC, supra (dismissal of all claims).)

 

The Coursebook alluded to other doctrines potentially limiting the justiciability of ATS claims. (Coursebook at 817, n.5.) One such doctrine came up in Mujica. Under the foreign affairs doctrine, the court held, state laws may not intrude into foreign affairs, which is a province of the federal government. ( Mujica, 2005 WL 1962635, at 4, 17-20 (dismissal of state law claims of wrongful death and intentional and negligent infliction of emotional distress relating to the Colombian bombing).) Another such doctrine is comity. ( Sarei v. Rio Tinto PLC, supra (dismissal of environmental and racial discrimination claims, but not war crimes or crimes against humanity, on basis of comity); Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846, at 4-8 (S.D.N.Y. 2005) (rejection of argument that international comity, a discretionary doctrine, called for dismissal; the company knowingly assisted the commission of grave human rights abuses, the compelling need for adjudication of such claims and absence of evidence that the company was acting pursuant to Canadian government policy and that the lawsuit called for judgment about a Canadian policy).)

 

 

  1. Forum non conveniens(pp. 817-18.)

 

In Agunda v. Texico, Inc., 303 F.3d 470 (2d Cir. 2002), the court affirmed the dismissal of an ATS complaint against a U.S. corporation for pollution in Ecuador and Peru on the ground of forum non conveniens on condition that the defendant waive a statute of limitations defense.

 

E: Torture Victims Protection Act Litigation (pp. 818-22)

 

In Doe v. Qi, 349 F. Supp. 2d at 1313, the court held that a plaintiff did not have standing to sue under the TVPA for alleged torture of a relative (parent).

 

The Coursebook mentioned the requirement that the defendant acted with “actual or apparent authority” or “color of law.” (Coursebook at 820, n.2.) That requirement has been an issue in two recent cases. ( Saravia, 348 F. Supp. 2d at 1149-51 (participant, conspirator, and aider and abettor of the 1980 assassination of Archbishop Romero acted under the apparent authority and color of law of El Salvador); In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d at 828 (dismissal of TVPA claims against two defendants because of no allegation they operated under color of law).)

 

The Coursebook referred to the TVPA requirement that foreign remedies must have been “adequate and available” in order to prevent a TVPA suit. (Coursebook at 820 n.4.) In Savaria, 348 F. Supp. 2d at 1151-53, the court concluded that there was no legal remedy in El Salvador for claims relating to the assassination of the Archbishop. Thus, the TVPA claim was not barred.

 

The Coursebook alluded to the question of the definition of “torture.” (Courebook at 82, n.5.) In Doe v. Qi, 349 F. Supp. 2d at 1317-18, the court said, “[W]hile a single instance of ‘garden variety’ excessive force may not constitute torture, sustained systematic beatings or use of particularly heinous acts such as electrical shock or other weapons or methods designed to inflict agony does constitute tort

 

The Coursebook referred to the district court decision in Alvarez-Machain dismissing a TVPA claim on the ground that the conduct occurred before the effective date of the statute and that the statute was not retroactive; the Coursebook also referred to a pending appeal of that decision in the Ninth Circuit. (Coursebook at 821, n.6.) There have been developments in that case:

 

 

 

 

The Coursebook referred to uncertainty as to whether the TVPA applied to corporate defendants in light of the statute’s language about suits against “individuals.” (Coursebook at 821-22, n.9.) That uncertainty continues. Two district courts have held that held that the TVPA’s reference to suits against “individuals” included corporations. ( Sinaltrainal v. Coca Cola Co., 256 F. Supp. 2d 1345, 1358-59 (S.D. Fla. 2003); Estate of Rodriguez v. Drummond Corp., 256 F. Supp. 2d 1250, 1257 (N.D. Ala. 2003).) Two other courts reached the opposite conclusion. ( In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d at 828; Arndt v. UBS AG, 342 F. Supp. 2d at 141.)

 

The Coursebook stated that in November 2000 a jury in a Florida federal court rendered a verdict for defendant Salvadoran generals in Ford v. Garcia, an action by the heirs of the four U.S. church women who were raped and murdered in El Salvador in December 1980. (Coursebook at 822, n.10.) The trial exhibits included the report of the El Salvador Truth Commission, other investigative reports, and declassified cables from U.S. Ambassador White to the U.S. State Department. Trial witnesses included Mr. White, a former investigator for the Inter-American Commission on Human Rights, and the two defendants. The jurors indicated that they thought they did not have enough evidence that the generals were able to exercise authority over subordinates. (See Daphne Eviatar, Following the Blood, American Lawyer, Jan. 2001, at 83.)

 

On appeal, the Eleventh Circuit affirmed. ( Ford v. Garcia, 289 F.3d 1283 (11 th Cir. 2002), cert. denied, 537 U.S. 1147 (2003).) Because there was no objection at trial to the command responsibility jury instruction, the appellate court reviewed the instruction only for plain error. Finding no such plain error, the court held that legislative history made clear that Congress intended to adopt the doctrine of command responsibility from international law and that the essential elements of liability under that doctrine were (i) the existence of a superior-subordinate relationship between the commander and the perpetrator; (ii) the commander knew or should have known that the subordinate was committing or planned to commit war crimes; and (iii) the commander failed to prevent the crimes or failed to punish the subordinate for same. This conclusion, said the court, was based upon In re Yamashita, 327 U.S. 1 (1946), ICTY and ICTR precedents, and Article 28 of the ICC Statute. In addition, the court held that plaintiffs had waived any objection to the related instruction on proximate causation, but Judge Barkett in a concurring opinion stated that the proximate causation instruction was erroneous and should be reviewed.

 

More recently another Florida federal court jury, after 20 hours of deliberation, rendered a $54.6 million verdict under the TVPA for other plaintiffs against the same two Salvadoran generals. The plaintiffs were four Salvadorans who claimed they were detained and tortured by members of the Salvadoran National Guard, National Police and Military in the early 1980’s during the Salvadoran Civil War. (See David Gonzalez, Victim Links Retired General to Torture in El Salvador, New York Times, June 25, 2002; David Gonzalez, Ex-Envoy Faults Salvador Army Over Torture, New York Times, June 26, 2002; Reuters, Salvadoran Says Police Tortured Prisoners, New York Times, June 28, 2002; David Gonzalez, Torture Victims in El Salvador Are Awarded $54 Million, New York Times, July 24, 2002; Manuel Roig-Franzia, Torture Victims Win Lawsuit Against Salvadoran Generals, Washington Post, July 24, 2002, at A1; Stephen Kinzer, U.S. and Central America: Too Close for Comfort ?, New York Times, July 28, 2002; Michael McClintock, A Glimmer of Justice for El Salvador, amnesty now, Fall 2002, at 12; See generally Center for Justice & Accountability, Cases--El Salvador: Carlos Eugenio Vides Casanova & Jose Guillermo Garcia, http://www.cja.org/cases/romagoza.shtml.)

 

The Arce case is also instructive on how to prove under the TVPA (or the ATS) that defendant superior officials had knowledge of human rights abuses by their subordinates. One of the plaintiffs’ witnesses in Arce was Michael McClintock, who was a researcher at Amnesty International during the period in question. He testified to its practice of Urgent Actions to solicit letters from AI members to government officials about human rights abuses in their countries, its Urgent Actions about El Salvador, and a response to one of the letter writers from one of the defendants thanking him for his interest. (Michael McClintock, A Glimmer of Justice for El Salvador, supra.) This experience suggests that organizations like Amnesty International should keep good records of its requests for letters to be sent to government officials and should develop a practice of keeping copies of such letters or urging the authors of the letters to keep copies.

 

 

F. Other Litigation Over Foreign Human Rights Abuses [ Insert at 822]

 

  1. Harbury case.

 

In March 1992 Efraín Bámaca Velásquez was a member of a Guatemalan guerrilla group that sought to overthrow the government. He disappeared. Over the next three years, his U.S. wife, Jennifer Harbury, endeavored to find out what had happened to her husband, and the case obtained some notoriety. In March 1995 a U.S. Senator announced that Velásquez had been killed at the order of a CIA “asset.” (Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process, 555-56 (3d ed. 2001).)

 

Harbury then sued, on her own behalf and as administratrix of her husband’s estate, officials of the CIA, U.S. State Department and the National Security Council (“NSC”). She sought damages for alleged deprivation of her husband’s Fifth Amendment due process rights, violation of her right to familial association, and interference with her right of access to the U.S. courts. These claims were based upon two broad allegations: First, CIA officials knowingly engaged in, directed, collaborated,and conspired in her husband’s secret imprisonment, torture, and extrajudicial murder. Second, NSC and State Department officials, while Bámaca was still alive, told her that they were investigating the whereabouts and status of her husband, but had discovered nothing even though they allegedly knew that her husband was alive and being tortured by CIA “assets.” In addition, after his death, these officials continued falsely to tell her that he was alive and that they were investigating the issues. ( Harbury v. Deutsch, 1999 WL 33456919, at 1-3 (D.D.C. 1999.)

 

The District Court for the District of Colombia dismissed the complaint on the grounds that there was no allegation of constitutional right violations and that the defendants were entitled to qualified immunity. ( Id. at 14.) Thereafter the U.S. Court of Appeals for the District of Colombia affirmed the dismissal of the Fifth Amendment and familial association claims, but reversed the dismissal of the access to the courts claim. ( Harbury v. Deutsch, 233 F.3d 596 (D.C. Cir. 2000), Harbury v. Deutsch, 233 F.3d 596 (D.C. Cir. 2000), rehg denied, 244 F.3d 956 (D.C. Cir. 2001), rehg en banc denied, 244 F.3d 960 (D.C. Cir. 2001).)

The U.S. Supreme Court then unanimously reversed the circuit court’s decision sustaining the claim for denial of access to the courts. ( Christopher v. Harbury, 536 U.S. 403 (2002).) In an opinion by Justice Souter, the Court held that such a claim had to allege an underlying cause of action, the official acts that frustrated the litigation, and a remedy that may be awarded as recompense but not otherwise available in a suit that may yet be brought. ( Id. at 412.) Harbury’s claim, however, failed to meet this standard. ( Id. at 419-22.) The case was remanded for further proceedings with respect to her tort claims that remain pending in the district court although the Court noted problems inherent in such claims. ( Id. at 420 n.19, 421-22.)

 

Holocaust Claims .

 

In 1951, West Germany agreed to pay reparations to victims of the Holocaust. The next year, 1952, a claim conference developed a system for allocation of such reparations, which amounted to $70 billion to date.

 

In 1995-96, the issue of financial claims arising from Holocaust arose again.

 

 

In the 1930s Swiss bank secrecy laws and practices started. Nazis knew of these laws and practices and made deposits of “Nazi gold” that had been stolen from victims and treasuries of conquered countries. Swiss bankers were aware that the gold did not belong to the Nazis. In addition, some European Jews opened bank accounts with the Swiss banks, and after the war, the banks refused to recognize claims of survivors or their heirs.

 

In May 1996, the World Jewish Restitution Organization, the World Jewish Congress, and the Swiss Bankers Association entered into an agreement to create an Independent Committee of Eminent Persons headed by Paul Volcker. The Committee’s central purpose was to “provide the basis for restitution of monies owed to individual victims of Nazi persecution or their heirs who entrusted funds to Swiss banks for safekeeping before and during World War II, to make as full an accounting as feasible of the custody of these funds by Swiss banks, and to satisfy the historic need for a moral accounting for present and future generations of critical events surrounding World War II.”

 

Audits of Swiss banks revealed they had 4.1 million dormant bank accounts; then the names of these account holders were correlated with names of Holocaust victims.

 

In October 1996, class actions were filed against Swiss banks in U.S. court to recover the bank accounts of Holocaust victims. The jurisdictional basis for the law suits included the Alien Tort Statue. One case was filed by U.S. citizens; the other was filed by foreign nationals. The court denied a motion to dismiss on grounds of statute of limitations, personal jurisdiction, and forum non conveniens.

 

In May 1998, Credit Swiss admitted it had found an account for one Holocaust victim and settled the individual claim.

 

In August 1998 the Swiss class action cases were settled for $1.25 billion. As part of the settlement, class members released Swiss banks, the Swiss government, and every private Swiss citizen and entity, except not Swiss insurance companies and Swiss art museums and collectors. (www.swissbankclaims.com; http://www.claims.state.ny.us.bank.htlm; Note, Taking Riggs Seriously: The ATCA Case Against a Corporate Abettor of Pinochet Atrocities, 89 Minn. L. Rev. 1497, 1519-21 (2005).)

 

b. European insurance companies.

 

In the 1930s European insurance companies sold insurance policies targeted at the Jewish middle class. The insurance companies required proof of death from families that made insurance claims for their relatives who died in the Holocaust. The companies denied claims asserting that there was no proof of death.

 

A class action was filed in federal court in the Southern District of New York that resulted in settlement that created the International Commission for Holocaust-Era Insurance Claims headed by Lawrence Eagleburger, former U.S. Secretary of State. The Commission spent $55 million in administering the claims and paid out $35 million of claims. (http://www.icheic.org/; http://www.claims.state.ny.us/ins.htm .)

 

 

In 1997, a class action was commenced in New Jersey federal court against German companies that had used slave labor of Jews, gypsies, and homosexuals during World War II. The case was initially dismissed on political question grounds and because U.S. treaties with Germany after WWII prevented suits. Nonetheless, the cases were settled for $5 billion.

 

 

The Nazi government during World War II and the Holocaust stole works of art which later were dispersed all over the world. There have been several individual claims, but no class actions, seeking return of the Nazi-looted art. Those claims were usually against innocent possessors on the ground that a thief can never deliver good title. (See generallyhttp://www.claims.state.ny.us/art.htm.)

 

In Austria v. Altmann, 541 U.S. 677 (2004), the U.S. Supreme Court affirmed the assertion of district court jurisdiction over the Republic of Austria and the Austrian Gallery in a case involving paintings by Gustav Klimpt. In so doing, the court rejected the assertion of sovereign immunity.

 

 

Professor Bazyler argues that U.S. courts are uniquely capable of addressing Holocaust claims because:

 

 

3. ATC-Like claims in the United Kingdom

 

The Court of Appeal in the U.K. recently decided a case that opens the door in that country to ATS-like claims. In Jones v. Saudi Arabia, http://www.redress.org/news/Jones%20v%20Saudi%20Arabia.pdf, the British plaintiffs served a complaint upon the Ministry of the Interior of Saudi Arabia and applied for permission to serve five Saudi officials for torture and assault. The Court of Appeal upheld the dismissal of the Ministry, but reversed the denial of leave to serve the individual officers. Upon remand, the master was directed to consider the possible defenses of forum non conveniens, sufficiency of the defendants’ connections to the U.K. and whether they had assets subject to the court’s jurisdiction. (See also Coliver, 19 Emory Int’l L. Rev. at 205.)

 

 

· The principal author of this supplement is Duane W. Krohnke, Adjunct Professor, University of Minnesota Law School.

The Court also held, 9-0, that the United States Government was immune from liability on the plaintiff’s claim under the Federal Tort Claims Act (124 S. Ct. at 2747-54). Justice Ginsburg, concurring, reached the same result on different grounds (id. at 2776-82).

In response to Sosa, scholars again have analyzed the meaning of the phrase “the law of nations” at the time of the adoption of the ATS in 1789. (See, e.g., Harold J. Berman, The Alien Torts Claim Act and the Law of Nations, 19 Emory Int’l L. Rev. 69 (2004); Genc Trnavci, The Meaning and Scope of the Law of Nations in the Context of the Alien Tort Claims Act and International Law, 26 U. Pa. J. Int’l Econ. L. 193 (2005).)

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented in Sosa on the issue of the federal courts’ ability to recognize or create new causes of action for such torts as a matter of federal common law (124 S. Ct.. at 2769-76). Prior to Sosa, there was considerable debate as to whether customary international law was part of state or federal common law. (E.g., Julian G. Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 Emory Intl L. Rev. 105, 121 n.68 (2005).)

The majority’s test for what is actionable under the ATS certainly is vague: a norm accepted by the civilized world and defined with a level of specificity comparable to the 18 th century paradigms of such torts. (See Note, The Supreme Court, 2003 Term: Leading Cases, 118 Harv. L. Rev. 248, 446, 454-55 (2004).) One commentator has suggested that assistance in identifying such norms may be found in the analogous body of federal case law regarding qualified immunity of government officials who did not violate “clearly established law.” (Gerald Weber, The Long Road Ahead: Sosa v. Alvarez-Machain and ‘Clearly Established’ International Tort Law, 19 Emory I. L. Rev. 129 (2005).)

Two recent books are devoted to the story behind the Filartiga case. (Richard Alan White, Breaking Silence: The Case That Changed the Face of Human Rights ( Washington, D.C.: Georgetown Univ. Press, 2004); William Aceves, The Anatomy of Torture: A Documentary History of Filartiga v. Pe Error! Main Document Only. ñ a-Irala (forthcoming 2006).)

The concurring opinion of Justice Breyer in Sosa suggested that torture, genocide, crimes against humanity, and war crimes constituted matters that were appropriate for claims for damages under international law as incorporated into federal common law. (124 S. Ct. at 2782-83.) Justice Breyer also suggested that recognition of such causes of action as a matter of federal common law should be consistent with notions of international comity and that the concept of universal jurisdiction for criminal prosecutions was the way to take into account this comity consideration (id. at 2782-83).

The Supreme Court did not consider any treaties that were not ratified by the U.S., but the opinion for the Court strongly suggests that they would not be given any weight.

The complaint in Saravia alleges that a Salvadoran national and California resident, played a key role in organizing the March 1980 assassination of revered Salvadoran Archbishop Oscar Romero, an outspoken critic of human rights abuses committed by the Salvadoran military. The defendant was a captain in the Salvadoran air force until he became a top aide of Salvadoran death squad leader Roberto D’Aubuisson. (See, e.g., Center for Justice & Accountability, Cases-- El Salvador: Alvaro Rafael Savaria , http://www.cja.org/cases/romero.shtml; Chang, Modesto man accused in '80 slaying of bishop , San Fran. Chronicle, Sept. 17, 2003; William Branigin, Suit Filed in '80 Death Of Salvadoran Bishop , Washington Post, Sept. 17, 2003.)

The Qi case involved Chinese mistreatment of Falun Gong practitioners. (See generally Center for Justice & Accountability, Cases-China: Liu Qi, http://www.cja.org/cases/liqi.shtml.)

An appeal to the Ninth Circuit is pending in Aldana. (International Labor Rights Fund, Summary of ATCA Cases Involving Multinational Corporations, http://www.laborrights.org/.

The September 11 case (a/k/a Burnett) is a suit by families of 600 people killed in the 9/11 attacks on the World Trade Center and the Pentagon against Saudi Arabian banks and charities, the Government of Saudi Arabia, and members of the Saudi royal family, accusing them of financially sponsoring the al Qaeda network and its leader, Osama bin Laden. (See Susan Schmidt, Sept. 11 Families Join to Sue Saudis, Washington Post, Aug. 16, 2002, at A4.); Note, Taking Riggs Seriously: The ATCA Case Against a Corporate Abettor of Pinochet Atrocities, 89 Minn. L. Rev. 1497, 1524-27 (2005).)

Commentators have suggested that the following additional norms should be actionable under the ATS after Sosa based upon pre- Sosa lower court precedents: piracy, violations of the right of safe passage, assaults on ambassadors, genocide, war crimes and slavery. (M. Christie Helmer & Brian Esler, Litigating Claims Under the Alien Tort Statute After Sosa v. Alvarez-Machain, 721 PLI/Lit 121, 133 (2005).)

This was an action by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb soldier who had become a resident of the State of Georgia. The court concluded, pre- Sosa, that under the ATS and TVPA, the defendant was liable for torture and that under the ATS, the defendant was liable for arbitrary detention, war crimes, crimes against humanity, genocide, and aiding and abetting such wrongs by others. ( Id. at 1344-56.) In an unusual twist, the court applied Georgia common law of assault and battery, false imprisonment, intentional infliction of emotional distress, and conspiracy to commit said torts. (See also Center for Justice & Accountability, Cases,http://www.cja.org/cases/cases.shtml (summaries of ATS and TVPA cases brought by the Center).)

The defendants in Cabello were the Chilean government and one of its military officer regarding the 1973 killing of a plaintiffs’ relative. See generally Center for Justice & Accountability, Cases-- Chile: Armando Fernandez Larios, http://www.cja.org/cases/cabello.shtml.

Earlier the federal district court in Doe v. Unocal, 110 F. Supp. 2d at 1311-12, remanded the state law claims to California state court. Thereafter the state court denied Unocal’s dismissal motion, deciding that Unocal may be liable under California state law of vicarious liability of joint venture partners and that the case should proceed to trial. (See Peter Waldman, Unocal Will Stand Trial Over Myanmar Venture, Wall S. J., June 11, 2002; Reuters, Unocal to Face Suit on Human Rights, New York Times, June 12, 2002; Lisa Girion, Judge Oks Unocal Abuse Lawsuit, L.A. Times, June 12, 2002.)

The Second Circuit in Flores had special criticism of the plaintiffs’ affidavits from international law scholars. Said the court, these “affidavits serve essentially as supplemental briefs, providing arguments and citations which for the most part [are duplicative of the parties’ briefs].” (343 F.3d at 170-71.)

See also, e.g ., Jogi v. Voges, No. 01-1657, http://www.ca7.uscourts.gov/tmp/ML0EAJFY.pdf (7 th Cir. Sept. 27, 2005)(reversal of dismissal of ATS money-damage claims by Indian national against state law-enforcement officials based upon alleged violation of the Vienna Convention on Consular Relations and remand for further proceedings; held that said Convention is self-enforcing and provides an implied private right of action); Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005)(suit against Henry Kissinger, former National Security Advisor to President Nixon, by children and estate of Chilean general who was killed in a coup d’etat).

Since then district courts have held that although the private companies are not subject to Bivens liability, their employees are. ( Purkey v. CCA Detention Center, 339 F. Supp. 2d 1145 (D. Kan. 2004); Sarro v. Cornell Corrections, Inc., 248 F. Supp. 2d 52 (D.R.I. 2003).)

This plaintiff victory on the FSIA issue in Qi, however, did not clear the deck because the court dismissed the claims for damages and injunctive relief on the basis of the act of state doctrine. (See infra.)

These norms in Mujica were extrajudicial killing, torture, crimes against humanity, war crimes and cruel, inhuman and degrading treatment. (2005 WL 1962635, at 10-14.)

In Rio Tinto PLC the State Department submitted a letter that the suit could have adverse effects on U.S. foreign relations. ( Sarei v. Rio Tinto PLC, supra; See Peter Waldman & Timothy Mapes, White House Sets News Hurdles For Suits Over Rights Abuses, Wall S. J., Aug. 8, 2002.)

Earlier the court also had rejected such a defense. ( Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp.2d 289, 346, 349 (S.D.N.Y. 2003).)

On appeal, the 11 th Circuit initially reversed the judgment, Arce v. Garcia, 400 F3d 1340 (11 th Cir. 2005), but then vacated its opinion while the matter was being considered en banc, Order, Arce v. Garcia, No. 02-14427-FF (11 th Cir. Aug. 5, 2005).

See Justice & The Generals/PBS, http://www.pbs.org/wnet/justice (public television program about the cases accompanied by web site with additional information about the program, El Salvador history and U.S. law).

The Court of Appeals then affirmed the judgment and remanded for further proceedings. ( Harbury v. Deutsch, 44 Fed. Appx. 522 (D.C. Cir. 2002).)

This summary of Holocaust claims is based upon Professor Michael Bazyler ’s Holocaust Justice: The Battle for Restitution in America ’ s Courts ( 2003) and upon Professor Bazyler’s comments to this course on November 7, 2003.

After remand, the district court denied a dismissal motion. (Altmann v. Austria, 335 F. Supp. 2d 1066 (C.D. Cal. 2004).)

 



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