The Center for Constitutional Rights’ Baher Azmy ()
One year ago Thursday, in Kiobel v. Royal Dutch Petroleum Inc., the U.S. Supreme Court interjected uncertainty into otherwise well-settled law relating to the reach of the U.S. Alien Tort Statute. Issued among a series of blockbuster decisions last term, the Kiobel ruling may have flown under the radar, but its implications for the development of U.S. human rights law are of grave importance.
The law was enacted by the first Congress in 1789 to bring the nascent nation into compliance with international law norms and to ensure that U.S. courts would provide redress to foreigners who suffered torts “committed in violation of the law of nations.” The statute’s simple terms laid relatively dormant for two centuries, until lawyers at my organization, the Center for Constitutional Rights, first recognized its power in 1979.
In a landmark case, Filártiga v. Peña-Irala, the center’s lawyers used the law to seek redress on behalf of a Paraguayan family whose son had been tortured to death by a police chief who had later taken residence in Brooklyn, N.Y. In legitimizing the use of the Alien Tort Statute as an international human rights mechanism, the U.S. Court of Appeal for the Second Circuit recognized that torturers are like the modern-day slave trader—they are hostis humani generis, or “enemies of all mankind”—and held they can be sued in U.S. courts.
The decision underscored the principle, prominently featured in the U.S.-led Nuremberg trials, that certain crimes are so heinous and universally condemned that their enforcement does not depend on national laws; Filártiga, which was ultimately endorsed by the Supreme Court in 2004 in Sosa v. Alvarez-Machain, affirmed the very possibility of transnational justice.
Since Filártiga, the Alien Tort Statute has played a vital role in ensuring that those who have committed egregious human rights violations abroad can be held accountable for their crimes, particularly if they seek safe haven in the United States. The court’s recent decision in Kiobel purported to restrict the scope of cases that occur “extraterritorially”; but the extent of the court’s tailoring of the law is not abundantly clear from the decision itself, creating unnecessary confusion among lower courts to the detriment of numerous human rights victims. One significant and surprising example of the inappropriate restrictions on claims is in the case Al Shimari v. CACI Premier Tech. Inc.
Why is this case significant? The end of this month will mark 10 years since the notorious photos of Iraqi detainees subjected to torture at Abu Ghraib first came to light. Although some military personnel who directly participated in the atrocities were court-martialed and served jail time for their role, a U.S. military contractor whose employees allegedly oversaw and ordered much of the torture not only evaded any form of accountability but has continued to receive millions of dollars in U.S. government contracts. Al Shimari, brought by the center on behalf of four victims of the torture, is one of a series of private lawsuits that has sought to address this accountability gap.
The plaintiffs in Al Shimari, Iraqi civilians later released from U.S. detention without charge, endured electric shocks, sexual violence, forced nudity, broken bones and the deprivation of food and water, among other serious mistreatment. The acts of torture in this case lie at the heart of human rights protections the Alien Tort Statute was designed to enforce. Yet the case was dismissed by a district court in the Eastern District of Virginia on the notion that the alleged torture and abuse occurred outside the United States and thus is barred by the “presumption against extraterritorial application of statutes” incorporated into the law by Kiobel. Adding insult to injury and sending a message to other human rights victims considering turning to U.S. courts for justice, CACI, a multibillion-dollar corporate enterprise, sought costs from these torture victims—a request the district court granted.
Could this possibly be result countenanced by the Supreme Court in Kiobel?
Not at all. Writing for the Court, Chief Justice John Roberts Jr. declared that cases brought under the Alien Tort Statute must “touch and concern” U.S. territory with “sufficient force” to “displace” the presumption against extraterritoriality. The court determined that, although the “foreign cubed” claims in Kiobel—brought by Nigerian plaintiffs against British and Dutch defendants for aiding and abetting the Nigerian government in torts committed on the sovereign territory of Nigeria—did not meet this test, Roberts’ opinion and those of the concurring justices make clear that some claims arising from torts occurring abroad—ones with a greater nexus to the United States—could still proceed.
The Fourth Circuit Court of Appeals in Richmond recently heard oral arguments on our appeal of the district court’s dismissal of the Al Shimari case. As we argued, the case, like many others, survives Kiobel because it involves a U.S.-based tortfeasor and exemplifies the core type of claims that Kiobel’s “touch and concern” test was meant to address: claims for which the United States would be seen as responsible for providing redress in the eyes of the international community. Indeed, here, where U.S. citizen employees of a U.S. corporation conspired with U.S. military personnel to commit grave human rights violations in a U.S.-run prison in the course of carrying out a U.S.-government contract, the obligation on the United States to provide an avenue for redress is undeniable.
One year from the Kiobel ruling, it is difficult to imagine a better use of the Alien Tort Statute than to offer some measure of justice to Abu Ghraib torture survivors—who suffered as a result of one of the most shameful episodes in recent U.S. history. Crimes of this severity, alleged to be perpetrated by a U.S. corporate entity, must be redressable by U.S. courts. The human rights legacy of the Alien Tort Statue– and the logic of Kiobel—each demand that much.
Baher Azmy is the legal director of the Center for Constitutional Rights.