A Brief history of the Alien Tort Statute
Adopted as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) has been part of U.S. law for more than 200 years, and allows non-U.S. citizens to sue for violations of the “law of nations” or customary international law, or of a treaty of the United States, in U.S. courts. It has been used to bring claims for human rights violations against government officials, private actors and multi-national corporations.
In 1979 CCR attorneys filed Filártiga v. Peña-Irala on behalf of Paraguayan citizens Joel and Dolly Filártiga for the politically motivated torture and murder of 17-year-old Joelito Filártiga, Joel’s son and Dolly’s brother. CCR argued that international law, in light of the post-Nuremberg emergence of international human rights law, is applicable to individuals as well as states. In probably the most important domestic international human rights case of the modern era, the Second Circuit ruled in favor of the Filártigas, and awarded a $10.4 million judgment. Filártiga broke new and important legal ground in civil human rights litigation.
Throughout the 1980s and 90s, the cases brought under ATS were primarily against foreign officials of recognized governments, including Doe v. Constant, Paul v. Avril, Xuncax v. Gramajo, and others. In 1993, CCR brought a lawsuit against Radovan Karadžic for genocide, war crimes, and crimes against humanity committed in Bosnia-Herzegovina in the early 1990s. The Second Circuit held that Karadžic, a non-state actor, could be held liable under the ATS for his complicity in these crimes.
In 2004 in Sosa v. Alvarez-Machain, the Supreme Court affirmed the Filártiga line of cases, holding that ATS provides a jurisdictional basis for claims for violations of international norms that are widely accepted and clearly defined.
ATS as a tool to seek corporate accountability for serious human rights violations
The case against Karadžic laid the groundwork for lawsuits against multinational corporations, and over the past decade, CCR and our allies have expanded the application of the ATS to cases involving human rights violations abetted or committed by multinational corporations, including Chevron, Unocal, Royal Dutch Shell PLC, and Caterpillar, Inc. Our experience with ATS litigation has also allowed us to respond quickly to the unprecedented questions of legal responsibility presented by the role of government-hired private contractors in the torture and abuse of Iraqi prisoners at Abu Ghraib and elsewhere. See Saleh v. Titan, Al-Shimari v. CACI, Al-Quraishi v. Nakhla.
CCR has continued to advocate that the courts equally protect all victims of human rights abuses and hold violators accountable, regardless of how powerful they are. We continue to work to support other attorneys litigating these kinds of cases and to expand the use of the Alien Tort Statute by holding conferences on using the ATS. Recent cases brought under the ATS include Murillo v. Micheletti, for the killing of a Honduran youth by the Honduran military after the June 28, 2009 coup, Al-Zahrani v. Rumsfeld, for the deaths in detention of persons held at Guantanamo, Al-Aulaqi v. Obama against President Obama, CIA Director Panetta, and Defense Secretary Gates, challenging their decision to authorize the targeted killing of a U.S. citizen and Sexual Minorities Uganda v. Lively, for persecution on the basis of sexual orientation and gender identity. See below for other cases CCR has brought under the ATS.
Following the Supreme Court’s decision on April 17, 2013, that there is a presumption against extraterritorial application of the ATS, that can be discharged when cases “touch and concern” the United States “with sufficient force,” CCR has filed briefs in the Al Shimari v. CACI and Sexual Minorities Uganda v. Lively cases on the impact of the Kiobel decision on the claims. The district court found that Sexual Minorities Uganda v. Lively could proceed. Following a 2013 dismissal of the Al Shimari case, plaintiffs appealed to the Fourth Circuit, which found the case satisfied the “touch and concern” test, including because it involved a U.S. corporation and its U.S.-citizen employees and because Congress has expressed its intent for non-U.S. citizens to have access to U.S. courts for torture claims against U.S. citizens.
CCR also joined in amicus briefs filed in post-Kiobel ATS cases, including two in the Second Circuit: Chowdhury v. Worldtel Bangladesh Holding, Ltd. and Khan and in the long-running South Africa apartheid case against IBM and Ford, in which the Second Circuit affirmed dismissal in July. CCR also served as counsel for an amicus brief filed before the Supreme Court in the caseDaimlerChrysler AG v Bauman. Most recently, CCR signed on as amicus in Adhikari v. Daoud & Partners, KBR et al., which is now pending before the Fifth Circuit Court of Appeals, in which we argue that a defendant’s U.S. nationality is itself sufficient to satisfy the “touch and concern” test.
- ATS Fact Sheet
- CCR panel discussion (September 27, 2012) on the Alien Tort Statute (ATS) ahead of the Kiobel argument. The event can be watched online here.
- Op-ed in the New York Times by former CCR client Dolly Filartiga: American Courts, Global Justice
- Article by CCR’s Katherine Gallagher: An Alien Tort Statute Primer, Journal of International Criminal Justice
Other CCR Alien Tort Statute Cases (Counsel or Amicus)