Blog: Alien Tort Statute
January 29, 2015
Posted by Tyler Giannini and Susan Farbstein
The Clinic and our partners filed an opening brief yesterday in the Second Circuit in an appeal in In re South African Apartheid Litigation. The case, which is being litigated under the Alien Tort Statute, seeks relief against IBM and Ford for assisting and supporting human rights violations committed in apartheid South Africa.
Back in August, the district court dismissed the case when the court denied Plaintiffs’ motion for leave to file an amended complaint against these two U.S. Defendants. The lower court reasoned that the claims did not sufficiently “touch and concern” the territory of the United States, as required by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which established a presumption against extraterritoriality in ATS cases.
On appeal, Plaintiffs contend that the lower court failed to undertake the necessary inquiry into the U.S. Defendants’ own conduct in the United States, and instead focused only on actions that took place in South Africa. The proposed amended complaint contains detailed new allegations about how, from the United States, both Defendant corporations aided and abetted the South African security forces and government to commit human rights violations over several decades. Defendants will file their opposition brief in the coming months.
Clinical students Ariel Nelson, J.D. ’15, Brian Klosterboer, J.D. ’16, and Peter Stavros, J.D. ’16, contributed research and drafting for the brief.
August 11, 2014
Posted by Susan Farbstein and Tyler Giannini
Last Friday, the International Human Rights Clinic filed a proposed amended complaint in the Apartheid Litigation against two defendants, Ford and IBM.
The amended complaint demonstrates how the claims “touch and concern” the United States as required by the Supreme Court’s Kiobel decision, as well as how the Defendants acted with the purpose to aid and abet the South African government’s violations of international law, as required by the Second Circuit’s Talisman decision. In particular, the complaint alleges that, through policies and decisions made in the United States, Defendant Ford directed and controlled the sale of specialized vehicles to the South African security forces to suppress the black population, while Defendant IBM created and maintained an identity card system to denationalize the black population.
July 2, 2014
Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad
Posted by Tyler Giannini and Susan Farbstein
On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.
The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.
The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.
In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:
Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis. Continue Reading…
April 17, 2014
“The Alien Tort Statute: In Pursuit of Corporate Accountability”
April 17, 2014
12:00 – 1:00 p.m.
Lunch will be served
On the one year anniversary of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, Paul Hoffman, counsel for petitioners, and Professor Noah Feldman, Harvard Law School, will discuss litigation strategies for holding corporations accountable for human rights violations. This is the kickoff event for the Harvard Human Rights Journal’s 14th annual symposium. Co-sponsored by the American Constitution Society and the Human Rights Program.
December 23, 2013
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. Continue Reading…
November 6, 2013
Posted by Betsey Boutelle, JD '14
The International Human Rights Clinic filed an amici curiae brief yesterday on behalf of legal historians in one of the first major Alien Tort Statute (ATS) cases to reach a court of appeals since the U.S. Supreme Court ruled in Kiobel v. Royal Dutch Petroleum Co in April.
The case, Al Shimari v. CACI Premier Technology, Inc., alleges that employees of CACI, a private military contractor, participated in the torture and degrading treatment of detainees at Iraq’s Abu Ghraib prison in 2003 and 2004. The four plaintiffs in the case were detained in Abu Ghraib during that time and allege that they suffered abuses at the express command of several CACI employees operating in the prison.
In June, a Virginia district court dismissed the plaintiffs’ claims. The court believed that Kiobel foreclosed ATS liability for international law violations committed outside the United States—even when the defendants are American. The Al Shimari plaintiffs have now appealed to the Fourth Circuit, arguing that Kiobel’s limit on extraterritorial ATS claims does not apply, because their case involves U.S. defendants operating in American-controlled territory.
Six professors of legal history signed the amicus brief, arguing that the history and purpose of the ATS clearly indicates that the Founders would have allowed claims against U.S. citizens. Jurisprudence dating back to the 17th century shows that sovereign nations were expected to provide a remedy when their subjects committed violations of the law of nations, wherever the wrongs occurred.
The Founders knew the consequences of condoning violations by U.S. actors. Failure to provide redress could cause conflict and even war, and thus threaten the young nation. The ATS was one important mechanism to help avoid conflict and to bring the fledgling Republic in line with the expectations of the community of nations. In the brief, amici argue that to exclude violations by U.S. actors, wherever they might occur, would contravene the aims of the Founders when they enacted the statute.
The brief was signed by professors of legal history William R. Casto (Texas Tech University School of Law), Martin S. Flaherty (Fordham Law School), Nasser Hussain (Amherst College), Stanley M. Katz (Princeton University), Michael Lobban (London School of Economics), and Jenny S. Martinez (Stanford Law School).
Led by Clinical Professor Tyler Giannini and Poppy Alexander, JD ’12, clinical students Betsey Boutelle, JD ’14, Avery Halfon, JD ’15, Lynnette Miner, JD ’14, Ariel Nelson, JD ’15, and Oded Oren, JD ’15, all contributed many long hours to the effort.
September 20, 2013
Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in Apartheid Case
Posted by Tyler Giannini and Susan Farbstein
This week, the International Human Rights Clinic, along with co-counsel, filed a petition on behalf of plaintiffs for panel rehearing or rehearing en banc to review the U.S. Second Circuit Court of Appeal’s decision in Balintulo v. Daimler AG, which is also known as the In Re South African Apartheid Litigation. The petition stated that “The panel opinion in Balintulo v. Daimler AG would eviscerate more than thirty years of this Court’s Alien Tort Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this Circuit.”
The petition comes more than 10 years after cases were first filed in the United States in 2002. Three defendant corporations—Ford Motor Company, Daimler AG, and International Business Machines Corporation (IBM)—remain from the original cases and are charged with complicity in the perpetration of apartheid-era crimes and human rights violations.
The petition seeks review of an August 21 decision by a three-judge panel of the Second Circuit that lifted a stay and sent the matter back to district court Judge Shira Scheindlin to consider the plaintiffs’ claims in light of the Supreme Court’s April decision in Kiobel. In the wake of the Kiobel ruling, which found that ATS claims must “touch and concern” the United States, the Second Circuit had requested letter briefs from both the plaintiffs and defendants. The briefs were submitted in late May, and in August, the Second Circuit stated that in light of Kiobel, “the Alien Tort Statute does not reach the extraterritorial conduct in this case.”
The U.S.-based lawyers representing the plaintiffs in the cases include Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Michael Hausfeld of Hausfeld, LLP, Diane Sammons and Jay Rice of Nagel Rice LLP, and Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky. The South African-based legal team includes Dumisa Ntsebeza, John Ngcebetsha, Charles Abrahams, Medi Mokuena, and Michael Osborne.
June 24, 2013
New Allegations of Government Planning in 2003 Bolivian Massacre
Months before violence, defendants calculated it would take thousands of deaths to stop protests
June 24, 2013, Miami, FL — As the tenth anniversary of government-planned massacres in Bolivia approaches, family members of those killed filed an amended complaint (English or Spanish) in Florida today with extensive new allegations that the Defendants, former President Gonzalo Sánchez de Lozada and former Defense Minister Carlos Sánchez Berzaín, had devised a plan to kill thousands of civilians months in advance of the violence. The complaint seeks damages against the Defendants for their involvement in extrajudicial killings and crimes against humanity.
Since the case was originally filed in U.S. courts in 2007, seven former Bolivian officials, including high-ranking military leaders and members of the Cabinet, have been convicted for their participation in the violence of 2003. Sánchez de Lozada and Sánchez Berzaín, however, have found a safe harbor from justice in the United States for nearly a decade.
The new complaint alleges that the Defendants calculated it would take thousands of civilian deaths to stop anticipated protests over a controversial economic policy. They refused to consider dialogue, traditional police practices, or other less violent alternatives to massive lethal force against the protestors. The Defendants specifically relied on military forces, including special forces, to target innocent civilians as part of their campaign of oppression, plaintiffs say. New details also show how the Defendants were intimately involved in carrying out the planned violence, including participating in the operations against the civilian population.
“The United States should not be a safe haven for perpetrators of violent attacks on unarmed civilians,” said Beth Stephens of the Center for Constitutional Rights, who represents the Plaintiffs. “That’s all the more true when the facts show that the Defendants had a direct involvement in the attacks.”
December 5, 2012
Note: this article was written by Cara Solomon and originally published in Harvard Law Bulletin
A Question of Accountability
In a Supreme Court case, the International Human Rights Clinic argues that the Alien Tort Statute applies to corporations
It started off with an insult: A French adventurer, standing in the streets of Philadelphia, called the ambassador of France a nasty name. And perhaps if it had ended there, the Alien Tort Statute might never have come to be.
But language was not enough for the Chevalier de Longchamps, who was nursing a grudge. He lunged toward the ambassador. He hit the ambassador’s cane with his own. And in assaulting a foreign ambassador, Longchamps committed a violation of the law of nations.
It was 1784. The incident in Philadelphia drew international attention; then condemnation; then ridicule, as the Continental Congress lacked the power to take meaningful action in response.
Five years later, as part of the First Judiciary Act, the founders sent a strong message with what they called the Alien Tort Statute: “The 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.”
It was an important gesture to the international community—a symbol of solidarity, historians would say: We will open up our new federal court system to victims of violations of the law of nations. The United States had arrived.
On the morning of Feb. 28, 2012, a team from Harvard Law School’s International Human Rights Clinic took their seats in the U.S. Supreme Court. Sitting directly behind petitioners’ counsel were Clinical Professor Tyler Giannini and Assistant Clinical Professor Susan Farbstein ’04, nationally recognized leaders in Alien Tort Statute litigation, and co-directors of the clinic.
They had waited months to hear oral arguments in Kiobel v. Royal Dutch Petroleum Co., a case that would test the limits of the centuries-old ATS. It was the highest-profile human rights case to come before the Supreme Court in years.
Even before the Court granted certiorari, Kiobel had become an international flash point for the debate on corporate accountability, generating nearly 40 amicus briefs analyzing the ATS from every angle—foreign policy, the global economy, the international human rights movement. HLS staff, students and alumni were involved on both sides of the issue. For its part, the clinic filed a brief on behalf of legal historians, in support of petitioners.
“What’s at stake in Kiobel is the future of the ATS itself, and whether it will remain an example of how the United States takes its international legal obligations seriously,” said Farbstein.
Kiobel began like any other ATS case in recent memory—with allegations against a company or an individual for violations of international law. Esther Kiobel and 11 other members of the Ogoni people in Nigeria filed suit
against Shell in 2002, alleging crimes against humanity, including complicity in torture and extrajudicial executions. At issue: the company’s actions from 1992 to 1995, when the Ogoni were protesting oil development activities on their land.
Because Shell does much of its business in the United States, the courts agreed to hear the case. But on appeal, the 2nd Circuit turned its attention away from the case and toward the statute itself, dismissing Kiobel on the grounds that corporations could not be held liable under the ATS.
For observers of the ATS, this came as a surprise: For years, courts had allowed cases to proceed on the presumption that corporations were as liable as individuals for violations of international law.
“No one had really questioned it,” said Jenny Martinez ’97, a professor at Stanford Law School and one of the amici represented by the clinic. “It did seem rather obvious.”
After the 2nd Circuit’s ruling, other appellate courts went in the opposite direction, finding corporate liability perm
issible under the ATS—in cases against Exxon Mobil Corp. for violence in Indonesia, the Rio Tinto mining group for violence in Papua New Guinea, and Firestone tire company for child labor in West Africa.
“It was clear from the split in the lower courts that the question in Kiobel—whether a corporation could be held liable—was a central and fundamental threshold question that had to be clarified,” said Giannini.
Sooner or later, he said, the issue was headed to the Supreme Court.
October 1, 2012
Posted by Cara Solomon
For all of you Kiobel watchers, here’s the transcript for this morning’s argument before the U.S. Supreme Court. We’ll post Tyler and Susan’s take on the questioning as soon as we can.
In the meantime, here’s some media coverage of the case, some of it published before the arguments and some of it published afterward. We were particularly pleased to see Desmond Tutu’s opinion piece in USA Today, which has clearly been making the rounds.
Desmond Tutu, USA Today: “Will U.S. Rule for Rights of South Africans?”
Jodie Kirshner, The Christian Science Monitor: “Supreme Court Case Tests U.S. Leadership in Human Rights”
The New York Times: “Justice Under the Law of Nations”
The New York Times: “October Term 2012”
Slate: “Torture Inc.”
SCOTUSblog: “Argument Recap: In Search of an ATS Compromise”