Human Rights and U.S. Courts

On March 30, 2004, the U.S. Supreme Court will hear oral arguments in a case involving the right of foreign persons to bring lawsuits in U.S. courts for grave human rights abuses.

That case, Sosa v. Alvarez-Machain, involves the arrest and detention — and subsequent transfer against his will from Mexico to the United States — of Dr. Humberto Alvarez-Machain, a Mexican national.

Dr. Alvarez-Machain was acquitted by a Federal District court in California of involvement in the 1985 killing of Drug Enforcement Administration agent Enrique Camarena — and subsequently sued Mexican authorities in a U.S. court.

He claims that his arrest and detention constituted an act "committed in violation of the law of nations or a treaty of the United States."

The language cited by Dr. Alvarez-Machain comes from the Alien Tort Claims Act (ATCA), which was part of the original Judiciary Act of 1789.

His case — which has made its way through U.S. courts for over a decade — has now become the vehicle for a full-scale challenge to use of the 215-year law for any human rights violation, however heinous.

The case now before the Supreme Court has prompted the filing of numerous briefs from business groups, non-governmental organizations and academics on both sides of the issue.

While some of the filers have expressed views on the specific circumstances of the Mexican doctor's treatment, the range of filings and parties reveal that much more is at stake.

The Bush Administration, reversing the positions of previous administrations dating back to 1980, seeks to gut the statute — and to make it unavailable as a tool for human rights accountability.

The administration argues that the law was not intended for such cases and that it presents serious foreign policy problems for the U.S. government.

Business groups, with some members now defending themselves against ATCA cases for alleged complicity in human rights violations, have joined the administration in seeking to rid themselves of the nuisance of such claims.

Human rights groups and other supporters of the statute have mounted an equally aggressive legal and policy response in support of the statute.

Despite the fact that it is part of the oldest U.S. law, the Alien Tort Claims Act has remained largely under the radar screen to date.

That has all changed. The Supreme Court's decision in the Sosa case is likely to have major implications for whether those who have suffered terrible persecution — and have determined they have nowhere else to turn — continue to have access to the U.S. justice system.

But why should foreigners look to U.S. law and U.S. courts to address their grievances in the first place?

Models of accountability may take different forms for holding perpetrators responsible for their actions. While criminal liability — in national or international courts — may be desirable, often it is not available.

The Bush Administration, for example, has aggressively opposed vesting a new international tribunal — the International Criminal Court (ICC) — with authority in this regard.

The ATCA offers qualified parties a civil remedy. This means that if they are successful, they may be awarded damages. Under the statute, there would not be any criminal prosecution of human rights abusers who either come to this country or have other ties to the United States.

For the past 24 years, U.S. federal courts have consistently upheld the law's use for precisely those actions — such as torture, summary execution and disappearances — that violate international law.

What is new is that over the past few years, victims also have begun to bring ATCA cases against U.S. corporations said to have assisted in such human rights violations.

To date, the law has been used infrequently — but effectively — against perpetrators such as Ferdinand Marcos and Radovan Karadzic, as well as lesser-known foreign officials.

It has offered a way to hold such officials accountable, not criminally — but through the possibility (even if remote) that their assets within the reach of U.S. courts may be seized.

Whether or not that is achievable, victims hope to at least ensure that where such officials have settled in the United States, their previously comfortable existence here will be disrupted.

The statute also offers the potential to deter future abuses — and to keep the United States from becoming a safe harbor for perpetrators.

Victims thus hope to send a message that others who commit atrocities will not be able to come to — and reside in — the United States with impunity.

Victims typically have been motivated to seek relief not by a desire for financial gain, or to "settle scores." Rather, it is an interest in some form of justice and in raising awareness of the conditions they faced. In so doing, they hope to set the historical record straight.

To date, U.S. courts have proven themselves quite capable of separating legitimate claims from those that do not warrant any legal relief — and of deciding whether those bringing each case are able to satisfy the requirements of the law.

ATCA lawsuits are difficult to win: Since 1980, a total of 18 perpetrators have been successfully sued, with five of those since 2000. This is out of a total of approximately 100 ATCA claims brought in the past 24 years.

Two were high-ranking officials still in positions of authority at the time of the lawsuits: The Bosnian Serb leader Radovan Karadzic — and a top Indonesian general who had ordered atrocities in East Timor. Nine were former senior civilian or military officials.

Of the 18, one died, one was extradited, one was deported — and 10 left the United States after being sued.

This included five of the 13 who had taken up residence in the United States. Only five of those sued remain in the United States today.

None of those who fled the country have returned. If they did, there is little that could be done to punish them — beyond the effort to try to obtain any assets they had here. Yet, the fact that they have not returned is a clear signal that the lawsuits had some effect.

Meanwhile, the cases brought in recent years against certain U.S. corporations continue to move along slowly. Roughly one-third — those in which the claims did not rise to violations of international law — have been dismissed.

Others are still working their way through prolonged legal motions and the "discovery" phase of litigation.

None of the cases — including the ones against Unocal based on violations in Burma, ExxonMobil for alleged complicity in Indonesia and Talisman Energy for activities in Sudan — has yet reached a verdict on the merits.

Put another way, U.S. business has not yet paid a penny in damages under the statute. Even so, several business groups — arguing about the potential for large damage awards, coupled with rising litigation costs — have joined the U.S. Department of Justice in seeking to gut the law.

Business also argues that the ATCA threatens trade and investment overseas, as well as U.S. foreign policy interests.

Despite these arguments, there is no reason to believe any U.S. court would find a company liable simply for being present in a zone of abuses — or for doing business with a highly repressive government.

Absent evidence of corporate complicity in human rights abuses, it is a stretch to suggest that trade or investment opportunities will be threatened.

Supporters of ATCA lawsuits can accept that standards to govern corporate activities around the world — including in countries with repressive regimes — would be better established through international negotiations and agreement than in U.S. courts.

But the business briefs submitted in the Sosa case currently pending before the U.S. Supreme Court reveal an opposition to the Alien Tort Claims Act based not on the goal of finding a better approach. Rather, they hold an orthodox view that the "law of nations" never should apply to private sector conduct.

This underscores that what is really at stake today is nothing less than U.S. leadership on human rights.

Cases brought in the past quarter-century under the act have sent a strong message to abusers and victims alike. Those who commit the worst forms of human rights abuses will not be considered above the law in the United States, nor will they be welcome here.

Now, if the ATCA opponents prove successful, a small number of foreign parties would be denied a measure of access to the U.S. judicial system in those rare cases where the requirements of the ATCA, both substantive and procedural, can be satisfied.

But the impact would be much more profound. It would, in effect, create a zone of impunity — or non-accountability — for even the most serious human rights violations.

Little wonder, then, that human rights advocates in the United States and beyond are keeping a close eye on the U.S. Supreme Court in the weeks ahead.