December 23, 2013

A Flurry of Activity to Wrap Up the Semester

Posted by Tyler Giannini and Susan Farbstein

A busy couple of days on the Alien Tort Statute (ATS) front had our International Human Rights Clinic in full swing right up to the end of the semester today.

First, along with co-counsel, we filed an opposition to a motion dismiss in our Mamani case last Wednesday with the district court in Florida. The ATS case, against the former Bolivian president and minister of defense, alleges that they devised a plan to kill civilians in order to quash popular protests against their government’s economic policies. In urging the Court to allow the case to proceed, the brief argues the Defendants executed their plan by agreeing to use military force to kill thousands of civilians until the population was terrorized enough to abandon demonstrations. The deaths that followed, including those of Plaintiffs’ family members in late 2003, were, according to the brief, “the intended result of a systematic plan in which military sharpshooters repeatedly shot and killed or injured civilians, in multiple locations over many weeks.” Defendants fled to the United States to escape criminal prosecution in Bolivia and have sought safe haven here for more than ten years, refusing to return to Bolivia to face trial.

We also filed our second and third amicus curiae briefs of the term in key ATS cases, on Thursday in D.C.  (Doe v. Exxon), and today in California (Doe v. Cisco). These briefs were similar to the amicus curiae brief on behalf legal historians that we filed in November with the Fourth Circuit in Al Shimari v. CACI. The briefs make it clear that when the Founders enacted the statute in 1789, they would have expected the ATS to apply to U.S. defendants. The Exxon and Cisco cases, both currently before district courts, center on allegations that U.S. corporations aided and abetted human rights violations abroad—in Indonesia and in China, respectively.

Last Thursday, the Ninth Circuit also came down with a significant decision in Doe v. Nestle. Those who follow the ATS know that it has been a busy year, ever since the U.S. Supreme Court’s ruling in Kiobel last April established a new presumption against extraterritoriality for ATS claims; dozens of cases that were previously on hold are again moving through the courts. The Nestle decision is important because it affirms that corporate liability still exists under the ATS even after Kiobel, thereby rejecting an extreme and categorical position that would bar all ATS claims against corporations. The Nestle court also found that “specific intent” is not the mens rea requirement for aiding and abetting liability under the ATS, and remanded the case to the district court for further proceeding including consideration of whether the Kiobel presumption against extraterritoriality will apply in the case. While Nestle wraps up 2013, next year should be a critical time for other ATS cases, as different circuit courts come down with decisions on important issues, much like the Nestle court did.

This flurry of ATS activity caps off a packed semester across the Human Rights Program (HRP). HRP organized and hosted three major conferences: on human rights in Europe and the United States; on assistance for civilian victims of armed conflict and armed violence; and on the rule of law. Our Clinic continued to push a ban to stop killer robots, a campaign that saw a major victory last month. With the Program and Clinic’s help, the role of healthcare professionals in the U.S. war on terror got much needed attention with the release of an independent task force report, Ethics Abandoned. In addition to major filings on our prisons work with partners in Brazil, the Clinic also supported partners’ submissions on the right to education in South Africa, leading to the release of binding norms on school infrastructure by the South African government in November.

As a community, we mourned the loss of Nelson Mandela, and at the same time renewed our commitment to his struggle: human rights for all. As we saw the 10th anniversary of the violence in Bolivia pass this year, we were also reminded that efforts like those of Mandela and the communities with whom we work to achieve justice take time. And so, as we return to work in January, we will push forward alongside our partners. In the meantime, we wish you all a safe, healthy, and happy New Year.

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