Defend the Alien Tort Claims Act

The Alien Tort Claims Act is one of the only tools Americans have to make human rights abusers pay for their actions. Now the U.S. Justice Department is trying to undermine this important law. Don’t let it happen!

The Alien Tort Claims Act allows foreign victims of serious human rights abuse abroad to sue the perpetrators in U.S. courts. No other country has a law quite like it. The accused perpetrator must be in the U.S. to be served court papers, but otherwise neither the victim nor the perpetrator need to reside in the United States.

The ATCA was written in 1789, one of the first laws of the new American republic. The text of the law reads, in its entirety: “The district courts shall have original jurisdiction of any civil action by an alien for a tort [personal injury] only, committed in violation of the law of nations or a treaty of the United States.”

So the ATCA grants U.S. courts jurisdiction in any dispute where it is alleged that the “law of nations,” or international laws, are broken. This is significant because it gives foreigners the right to seek compensation for violations of international law in U.S. courts.

The original intent of the law was probably to persuade European countries that the new United States would not become a haven for pirates. But in the modern age, it’s equally important that the United States not be a haven for human rights abusers.

There was no human rights movement in 1789, and there was no international human rights law. However, by 1979 torture was a violation of the “law of nations.” So, the father and sister of Joel Filartiga, a seventeen-year-old who had been tortured to death in Paraguay, used the act against Joel’s torturer, who was living in Brooklyn at the time.

In the Filartiga case, the Second Circuit Court of Appeals decided that the Alien Tort Claims Act allows victims to sue in U.S. courts for serious violations of international human rights law.

Joel’s family members never collected a dime of the $10 million damages they won in the Second Circuit. But they won the satisfaction of seeing justice done, of knowing that the crimes of Joel’s torturer had entered into the public record.

Since 1979, only 25 cases against corporations have been brought under the ATCA. The cases are hard to bring. Because the plaintiffs are rarely able to collect any money, even when they win, the lawyers who bring these cases are working basically for free. Documenting crimes in a faraway country can be difficult (the work of Human Rights Watch has been used in some cases as evidence).

Some cases, such as the Bosnian victims of a rape camp who sued the Bosnian Serb leader Radovan Karadzic, involve complicated legal arguments about who can be held responsible for a crime. In recent years, in a handful of cases, the ATCA has been used in lawsuits against U.S. corporations who are accused of knowingly benefiting from serious human rights abuse.

For more than twenty years, ATCA cases have been brought without opposition from the U.S. government, both Democratic and Republican administrations. Occasionally, the courts have asked for the opinion of the U.S. State Department in one case or another. But with the administration of George W. Bush, we have seen a dramatic new campaign against this valuable law.

The U.S. Justice Department recently filed an “amicus” (friend of the court) brief in a Ninth Circuit case involving the energy company UNOCAL and a group of Burmese people who say they were forced to work as slaves on a UNOCAL pipeline project. The Justice Department brief took issue with the very use of ATCA to file human rights cases.

Some international business groups are openly campaigning against ATCA. They are asking Congress to repeal or amend the law so that companies cannot be sued.

What you can do:

• Write to U.S. Attorney General John Ashcroft and tell him to stop attacking ATCA.

• Write your representatives in the U.S. House and Senate and urge them not to let this law be undermined. Members of Congress can write amicus (“friend of the court”) briefs supporting the use of ATCA in ongoing court cases. They can make sure that no legislation is proposed to repeal or amend ATCA -- and if such legislation does come to a vote, they can make sure it’s defeated.

• Raise awareness of this issue. Use the information on this Web site to write an op-ed in your local paper.

• Get your local bar association interested. Lawyers groups have a special role to play.

• Write to the businesses behind the anti-ATCA campaign and tell them to start behaving like good corporate citizens.

July 29, 2003

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