Category Archives: ATCA litigation

U.S. Supreme Court Limits Corporate Liability for Human Rights Abuses

Arab Bank, the defendant in Jesner v. Arab Bank
Credit: jo.schz via Flickr

On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRCSee Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.

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Blackwater Successor Settles Two Wrongful Death Cases by Civilians and Contractors Killed in Iraq

Family members of Iraqi civilians killed by Blackwater security contractors in Baghdad’s Nisoor Square in 2007 have agreed to a settlement offered by Academi, Blackwater’s successor (also recently known as Xe Services).  [Washington Post] On September 16, 2007, Blackwater employees guarding U.S. diplomats opened fire into a crowd, killing seventeen Iraqi civilians in what was alleged by prosecutors to be an unilateral and unjustified attack.  The family members of some of the victims filed suit against the security company and five individual contractors in state court in North Carolina in 2009  for wrongful death and other torts (complaint in Brady et al v. Xe Services et al. here).

The defendants argued they were essentially U.S. government employees, and that the U.S. government should take their place as defendant.  The defendants also argued that the U.S. federal court

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Two Suits Against Corporations for Violations of International Law Proceed in U.S. Federal Court

Eleven Falun Gong practitioners have filed suit against computer networking company Cisco Systems for allegedly facilitating human rights abuses by the Chinese government against Falun Gong members,  by developing and providing Internet surveillance technology known as Golden Shield or Policenet. [Wall Street Pit]   The suit, filed by the Human Rights Law Foundation in the U.S. District Court for the Northern District of California last Thursday, alleges that as a result of the Chinese government’s ability to monitor Falun Gong members’ Internet activity, individuals were arbitrarily detained, tortured and killed. [CNET]  A cisco representative has publicly denied the allegations and said that Cisco does not operate any network. [NYT]

Similarly, twenty-two plaintiffs have prevailed in a challenge to the District Court for the Northern District of California’s personal jurisdiction over Daimler AG in a suit against the company  alleging its civil liability, through its subsidiary Mercedes-Benz, for international crimes committed by Argentine officials during that country’s Dirty War. [SFAppeal]  The plaintiffs based the company’s liability on its Argentine employees’ participation or acquiescence in the detention, kidnapping, torture and killings of workers at a Mercedes plant near Buenos Aires.  The plant officials allegedly permitted Argentine military and police agents to be stationed there and identified workers who sympathized with the opposition.  The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s holding that it lacked personal jurisdiction over Daimler AG.

 

U.S. Court Rules Corporations Cannot be Held Civilly Liable for Torture and Other Violations of International Law under ATCA

Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.

The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.

In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ]  As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.

In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law.  The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.

However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.

Read more on the ATCA on this blog (here and here), from the Center for Justice & Accountability, on the Center for Constitutional Rights’ ATCA Q&A sheet, and on Amnesty International USA’s website.

News Clips – September 20, 2010

  • In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]
  • The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]
  • On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]
  • Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]
  • Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]
  • Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]
  • Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]
  • A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]
  • The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]
  • In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]
  • Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times]  The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]
  • Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]
  • Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]
  • The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government  protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report).  The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]
  • Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups.  [HRW]
  • The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]
  • Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]
  • UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]
  • The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation.  Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]
  • UN expert calls on Sudanese authorities to investigate the September 2nd killing of dozens of civilians in North Darfur. [OHCHR]
  • A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week.  They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]
  • Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now.  [AFP; HRW]
  • Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]
  • The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]
  • 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]
  • In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]

Ninth Circuit Dismisses Rendition Lawsuit against Boeing Subsidiary, Granting Government’s Invocation of State Secrets Privilege

On September 8, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a civil suit filed under the Alien Tort Claims Act by five extraordinary rendition victims against a Boeing subsidiary, Jeppesen DataPlan, Inc. for its role in their rendition.  [Amnesty International USA ; ACLU]  The federal government intervened in the suit, arguing that any divulgence of information relating to Jeppesen’s work for the CIA would make public privileged information.  The district court granted the government’s motion to dismiss.  On appeal, a three-judge panel of the Ninth Circuit Court of Appeals reversed and remanded.  An eleven-judge panel of the Ninth Circuit took up the case en banc, the majority then “reluctantly” concluding that the state secrets privilege applied and, on the facts of the case, required dismissal.

The five plaintiffs are non-U.S. citizens who were detained in Sweden, Pakistan, Gambia and Jordan before being rendered to Egypt, Morocco, and Afghanistan, where they allegedly suffered torture and inhumane conditions of detention.  Several allege that they were sentenced to lengthy prison terms after giving false confessions under severe torture. Two of the plaintiffs, Binyam Mohamed and Bisher al-Rawi, were eventually transferred to Guantanamo, where they spent years in detention.

Unlike the district court, the circuit court relied on the privilege established in Reynolds (state secrets evidentiary privilege) rather than on the Totten bar (barring adjudication where the very subject of the litigation is a state secret).  The state secrets privilege is intended to protect information when “strictly necessary to prevent injury to national security”. See, e.g., Mohamed v. Jeppesen Dataplan, Case 08-15693, Slip Op. at 13538 (9th Cir. Sept. 8, 2010), quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).  The effect of a sustained claim of the state secrets privilege is the excision of the protected evidence from the litigation.  In Mohamed, the Ninth Circuit held that dismissal was required because the privileged evidence could not be separated from nonprivileged information, creating an “unacceptable risk of disclosing state secrets” were the case to continue. Id. at 13540 et seq.  In spite of the hundreds of pages of nonprivileged documents offered into evidence by the plaintiffs (listed in the dissent’s appendix), the majority concluded that Jeppesen’s response to such evidence would require disclosure of privileged information. Id. at 13551-52.  The majority also took note – on two occasions – that the Obama administration had revised the federal standards for invocation of the state secrets privilege and certified to the court its compliance with those standards in this case. Id. at 13528-29, 13552-53.  [See Michael Isikoff’s critical Newsweek article on that issue here].

With regard to the plaintiffs’ possibilities for relief, the majority wrote:

Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs. […].

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed. Cl. 97 (1999).

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “ […]

Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n.5 (1982) (Burger, C.J., concurring) (“For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.”) […]  When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).

Id. at 13553-56 (internal citations omitted).

The Ninth Circuit’s decision is an interesting echo of the Second Circuit’s dismissal of Maher Arar’s suit against U.S. government officials alleging wrongful detention and torture in connection with his extraordinary rendition to Syria.  While the Second Circuit did not reach the questions of qualified immunity or the state secrets privilege, the court placed primary importance on non-judicial remedies in the resolution of such cases, explaining that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress”.  The U.S. Supreme Court recently declined review of the Second Circuit’s dismissal.

In their sharply worded opinion, the five dissenting judges argued that the majority’s holding was procedurally flawed, in that the plaintiffs’ allegations were sufficient to survive dismissal and the state secrets privilege should not have been used to prevent plaintiffs from proving (through non-secret evidence) the veracity of allegations “that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute.”  Id.  at 13559. Rather, review of the privilege’s application should have taken place with regard to specific pieces of evidence, once the complaint had been answered and discovery had begun (not, as in this case, immediately after the complaint was filed), so as to avoid that the privilege trump due process of law. Id. at 13559-61.  The dissent’s – highly compelling – argument is that the majority allowed the state secrets privilege to apply to facts, rather than to evidence, prohibiting the plaintiffs from alleging certain conduct and knowledge by Jeppesen  rather than barring the introduction of pieces of evidence that could jeopardize national security (without having regard to whether privileged information could also support their allegations). Id. at 13568.  The dissent concludes by arguing that the alternative remedies identified by the majority fly in the face of the notion of judicial review and the concept of checks and balances.

The tie-breaking concurring opinion argued in favor of applying the Totten bar to dismiss.

News Clips – June 1, 2010

  • Protocol 14 to the European Convention on Human Rights enters into force today, introducing a number of changes to decrease the Court’s backlog, strengthen enforcement in order to reduce repetitive applications, concentrate its efforts on cases where applicants have suffered a “significant disadvantage”, and allow the European Commissioner for Human Rights to intervene as a third party [ECHR]
  • UN Special Rapporteur on Extrajudicial Executions reports continuing killings by Brazilian police [UN]
  • UN Security Council calls for impartial investigation of deaths on Gaza flotilla [Washington Post]
  • Efforts by Jamaican police to arrest suspected drug dealer, wanted for extradition by the U.S., claim dozens of lives, raising concerns of the Inter-American Commission on Human Rights [IACHRWashington Post]
  • U.S. Supreme Court decides Samantar v. Yousuf, holding that the Foreign Sovereign Immunities Actdoes not grant immunity to former Somali prime minister against torture suit brought by victims of abuse [CJASCOTUSblogWashington Post]
  • IACHR grants precautionary measures to indigenous communities affected by Goldcorp’s Marlin mine in Guatemala, in order to prevent environmental contamination [IACHR]
  • UN experts condemn attacks against religious minority in Pakistan [UN]
  • Tropical Storm Agatha claims lives in Central America, as flooding and landslides continue [Washington Post]
  • UN Working Body on Enforced and Involuntary Disappearances expresses concern over suspension of Spain’s Judge Garzón
  • Bahrain prohibits news outlet Al Jazeera from operating within its territory [Impunity Watch]
  • U.S. Supreme Court decides Berghuis v. Thomkins, holding that Miranda waiver was implied by man’s admission after over two hours of silence, reinterpreting Miranda to require explicit invocation of right to remain silence [Washington PostSCOTUSblog]
  • UN High Commissioner for Human Rights calls for investigation of crackdown on political protesters in Thailand [AFP]

    Karadzic Trial Resumes at ICTY

    The trial of Radovan Karadzic for acts of genocide, crimes against humanity and war crimes resumed yesterday before the International Criminal Tribunal for the former Yugoslavia, in The Hague.  The trial, which first began in October 2009, was suspended when Karadzic refused to participate.  See the ICTY’s fact sheet on the trial here.

    Karadzic had previously been sued in the United States by victims of his alleged crimes.  The Second Circuit Court of Appeal’s resolution of that civil claim is considered a landmark decision on the reach of the Alien Tort Claims Act and Torture Victims Protection Act (available here and here).