Alien Tort Claims Act of USA
Recently, American courts have begun adjudicating civil liability for human rights violations (especially torture) committed in another country, under the Alien Tort Claims Act (28 U.S.C. §1350) and the Torture Victim Prevention Act (28 U.S.C. §1350).
The US Second Circuit Court of Appeal said the following in a Judgment delivered in September 2000[i] about application of these two Acts:
“The Alien Tort Claims Act (ACTA) was adopted in 1789 as part of the original Judiciary Act. In its original form, it made no assertion about legal rights; it simply asserted that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States…” For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases [ii]. As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA [iii].
These suits produced several important decisions interpreting the meaning and scope of the 1789 Act. For example, in Filartiga v. Pena-Irala, this court held that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. More recently, we held in Kadic v. Karadzic, that the ATCA reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties.
In passing the Torture Victim Prevention Act [TVPA], Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. While the 1789 Act expressed itself in terms of a grant of jurisdiction to the district courts, the 1991 Act:
(a) makes clear that it creates liability under U.S. law where under “color of law, of any foreign nation” an individual is subject to torture or “extra judicial killing,” and
(b) extends its remedy not only to aliens but to any “individual,” thus covering citizens of the United States as well. The TVPA thus recognizes explicitly what was perhaps implicit in the Act of 1789 – that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights (at least with regard to torture) is ipso facto a violation of U.S. domestic law.
Whatever may have been the case prior to passage of the TVPA, we believe plaintiffs make a strong argument in contending that the present law, in addition to merely permitting U.S. District Courts to entertain suits alleging violation of the law of nations, expresses a policy favoring receptivity by our courts to such suits. Two changes of statutory wording seem to indicate such an intention. First is the change from addressing the courts’ “jurisdiction” to addressing substantive rights; second is the change from the ATCA’s description of the claim as one for “tort... committed in violation of the law of nations...” to the new Act’s assertion of the substantive right to damages under U.S. law. This evolution of statutory language seems to represent a more direct recognition that the interests of the United States are involved in the eradication of torture committed under color of law in foreign nations.
One of the difficulties that confront victims of torture under color of a nation’s law is the enormous difficulty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place. It is not easy to bring such suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and difficult to administer. In addition, because they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they are brought. Finally, because characteristically neither the plaintiffs nor the defendants are ostensibly either protected or governed by the domestic law of the forum nation, courts often regard such suits as “not our business.”
The new formulations of the Torture Victim Protection Act convey the message that torture committed under color of law of a foreign nation in violation of international law is “our business,” as such conduct not only violates the standards of international law but also as a consequence violates our domestic law. In the legislative history of the TVPA, Congress noted that universal condemnation of human rights abuses “provide[s] scant comfort” to the numerous victims of gross violations if they are without a forum to remedy the wrong. This passage supports plaintiffs’ contention that in passing the Torture Victim Prevention Act, Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts. If in cases of torture in violation of international law our courts exercise their jurisdiction conferred by the 1789 Act only for as long as it takes to dismiss the case for forum non-conveniens, we will have done little to enforce the standards of the law of nations.
[i] That case involved civil suits brought against international Shell Oil Company for the executions of several Nigerians, including prominent author Ken Saro Wiwa, arising out of disputes over the development of oil resources in the homeland of the Ogoni people. Plaintiffs alleged that, although the government of Nigeria tortured and executed the claimants and their decedents, these abuses were “instigated, orchestrated, planned, and facilitated by Shell Nigeria under the direction of the defendants,” who were said to have “provided money, weapons, and logistical support to the Nigerian military, participated in the fabrication of murder charges, and bribed witnesses to give testimony.” After finding personal jurisdiction, the court turned to the defendants’ argument that the case should be pursued in England because of forum non-conveniens. The plaintiffs asserted that in addition to the ATCA, the 1991 passage of the Torture Victim Prevention Act, 28 U.S.C. §1350 App, argued for keeping the cases in the United States. The court held that defendants’ showing was inadequate and rejected the defense of forum non-conveniens.
[ii] See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n. 21 (2d Cir.1980) (identifying only two previous cases that had relied upon the ATCA for jurisdiction).
[iii] See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated by Serbian military leader); In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984) (alleging claims against Libya based on armed attack upon civilian bus in Israel); Filartiga, 630 F.2d 876 (alleging torture by Paraguayan officials); Xuncax v. Gramajo, 886 F.Supp. 162 (D.Mass.1995) (alleging abuses by Guatemalan military forces).