On May 8, Attorney General John Ashcroft filed an amicus curiae (“friend of the court”) brief for the defense in a civil case alleging that the oil company Unocal was complicit in forced labor and other abuses committed by the Burmese military during the construction of the Yadana gas pipeline. The case, John Doe I, et al. v. Unocal Corporation, et al., was originally filed in 1996 and is currently being reheard by the U.S. Ninth Circuit Court of Appeals.
The Justice Department brief went well beyond the scope of the Unocal case, however, and argued for a radical re-interpretation of the 1789 Alien Tort Claims Act (ATCA). For over 20 years, courts have held that the ATCA permits victims of serious violations of international law abroad to seek civil damages in U.S. courts against their alleged abusers who are found in the United States. The Justice Department would deny victims the right to sue under the ATCA for abuses committed abroad.
“This is a craven attempt to protect human rights abusers at the expense of victims,” said Kenneth Roth, executive director of Human Rights Watch. “The Bush administration is trying to overturn a longstanding judicial precedent that has been very important in the protection of human rights.”
Courts have upheld human rights suits under the ATCA since 1980, in a case brought by the father and sister of Joel Filartiga, a seventeen-year-old Paraguayan. Filartiga was kidnapped and tortured to death by a Paraguayan police official who subsequently emigrated to the United States. In that case, the Second Circuit Court of Appeals held that the ATCA permitted victims to pursue claims based on serious violations of international human rights law. Victims have also been awarded damages against other perpetrators, including Bosnian Serb leader Radovan Karadic and former Philippine president Ferdinand Marcos. However, because the defendants have traditionally been non-residents without assets in the U.S., it has been difficult to collect the awards.
The Justice Department argued that the ATCA could not be used as a basis to file civil cases and that victims should sue under other laws; that the “law of nations” covered by the ATCA did not include international human rights treaties; and that abuses committed outside of the United States would not be covered under the law. No previous administration has challenged the legitimacy of ATCA cases against gross human rights abusers.
If the Administration’s argument were upheld, some of the cases that would not have gone forward include:
* The 1996-97 Holocaust Litigation cases against Swiss banks, which led to a U.S. government-negotiated settlement to pay Holocaust survivors approximately $1.25 billion. The cases were brought under several laws, including the ATCA.
* Presbyterian Church of Sudan, et al. v. Talisman Energy Inc., a 2001 suit filed in New York federal district court alleging that Talisman Energy was complicit in human rights abuses committed by the government of Sudan in oil-producing areas where Talisman operated. The court denied the company’s motion to dismiss the case on March 19, 2003.
* Raymonde Abrams v. Societe Nationale Des Chemins De Fer Francais, a case filed in 2000 in which Holocaust survivors alleged that the National French Railroad Company deported Jews and others to Nazi death camps. A New York district court dismissed the case on November 7, 2001; it is currently on appeal to the Second Circuit Court of Appeal.
“The Justice Department brief could do a lot of damage to this important legal precedent,” said Roth. “Supporters of human rights should tell the Bush administration to leave the Alien Tort Claims Act alone.”
The Alien Tort Claims Act was adopted as part of the original Judiciary Act in 1789 and states that “[t]he 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.”
In 1993, lawsuits were brought against multinational companies for alleged complicity in human rights violations abroad. There have been at least twenty-five such cases against companies over the last ten years; the courts have dismissed most of these cases and have not rendered any judgments against companies.
The Doe v. Unocal case was originally filed in 1996. In 1997, a U.S. federal district court in California ruled that the company could be held liable for the alleged abuses, but subsequently dismissed the case in 2000. Two years later, the Ninth Circuit Court of Appeals overturned the ruling and allowed the case to proceed. However in February 2003, the Ninth Circuit agreed to rehear the case en banc. The Justice Department brief was filed for this rehearing.
Human Rights Watch is not a party to any lawsuit filed under the ATCA, nor does it take a position on the merits of any particular case. However, Human Rights Watch believes that victims should have the option to file such suits.
Read HRW’s background on the ATCA at: http://hrw.org/campaigns/atca/
Read the U.S. Justice Department’s amicus curae brief at: http://www.hrw.org/press/2003/05/doj050803.pdf