In an opinion issued on June 23 in Cisco v. Doe I, the U.S. Supreme Court ruled in favor of Cisco Systems, a U.S. technology company, shielding it from a lawsuit by torture survivors – members of the Chinese dissident group and spiritual movement Falun Gong, who claim the company helped the Chinese government surveil and target them. In doing so, the Court finally killed the contemporary use of the 1789 Alien Tort Statute: an avenue for foreign survivors of egregious human rights violations to seek justice in U.S. federal courts.
The 6-3 decision to quash the modern use of the ATS is a travesty; it betrays the promise that U.S. federal courts held out to survivors, the Supreme Court’s own jurisprudence with respect to stare decisis (the principle of adhering to previous rulings), and four decades of thoughtful engagement by the lower courts. Moreover, the timing could hardly be worse. With experts sounding a five-alarm fire on the risk of AI companies enabling the commission of atrocities at scale, those seeking to constrain corporate behavior through the law would benefit from having the ATS in play. That said, the ATS is not the only law available to survivors, and U.S. federal courts are not the only fora through which they can seek accountability. Others have written about the Cisco opinion itself. Here, I address what other legal options are available for survivors seeking accountability and how those can be strengthened now that ATS is dead.
Widening the Aperture
Beginning in the late 1980s, a generation of human rights law students and scholars based in the United States began to understand the ATS as a beacon, shining its light toward securing court-ordered accountability for those who commit and enable atrocities and other severe human rights violations. By the late 1990s, the ATS had become a particularly attractive vehicle for reaching corporate perpetrators. Views on the motivating factors behind this differ (pro bono lawyers committed to giving survivors a voice, class action firms looking for business, human rights lawyers keen to get beyond naming and shaming and show their bonafides as litigators). Regardless, against industry defaults of self-regulation, voluntary standards, and soft law in business and human rights, the ATS offered a remedy that was more commensurate with the violations that victims had suffered.
For decades now, U.S. law journals have been populated with ATS articles, from comments by students to full-length treatment by tenured academics. The attention has been so overwhelming that the casual observer could be forgiven for imagining that the ATS was the one and only legal avenue available in the United States to foreign survivors of serious human rights violations. Thankfully, that is not true.
Transitory Torts and State Courts
Even before the First Congress passed the ATS, there was a doctrine that supported the pursuit of accountability beyond standard jurisdictional bounds. Established in a 1774 Court of the King’s Bench case, the “transitory tort doctrine” stood for the idea that a plaintiff’s right to redress follows the person who perpetrated the violation – no matter where that defendant travels. While the First Congress, with the ATS, tried to funnel transitory torts against foreigners in violation of international law into U.S. federal courts, the ability of foreigners to pursue such transitory torts through state courts has persisted through to the present.
The voluminous scholarship on the ATS has often failed to note that from the earliest days of the modern ATS era, litigants have mostly been careful not to put all their eggs in the ATS basket. Indeed, in the first ATS case brought against a corporate defendant – where Burmese survivors alleged violations by oil giant Unocal – the EarthRights International lawyers for the Burmese plaintiffs included state tort law claims in their complaint. Unocal settled with the plaintiffs three months prior to a trial date set by the Superior Court of Los Angeles in relation to the state law claims – timing that suggests Unocal was concerned about the state court trial proceeding.
In other cases, the concept of a transitory tort has led state courts to proceed on the basis of foreign law. Such cases are complex for all involved, but recently there have been some stunning successes for survivors, even as the ATS claims in the cases failed. In 2024, a jury in Florida issued a $38 million verdict against the agricultural firm Chiquita for enabling atrocities in Colombia, by relying on Colombian law. In 2025, a jury in New York issued a $20 million verdict against the world’s fourth largest bank, BNP Paribas, for enabling atrocities in Darfur, Sudan, in violation of Swiss law. (Both corporations are appealing.)
To be clear, taking the transitory tort approach through state courts, and using state or foreign law, does not provide a straightforward substitute for the ATS. The expertise that both lawyers and the federal judiciary have built up over four decades of ATS litigation was facilitated by the fact that ATS jurisprudence was consolidated around a single law, under federal jurisdiction. That meant there was a sizeable but discrete body of case law to master.
Once the terrain shifts, as it now must, to state courts with 50 sets of laws, and well over 100 foreign laws potentially in play, the path forward looks daunting. Developing the expertise to pursue these cases takes time, money, and often transnational partnerships between lawyers. None of these are assets that survivors of egregious human rights violations typically have at their disposal. (Pro bono human rights lawyers and class action firms will continue to develop their work in this space. But Big Law firms, especially those whose reputations have been tarnished by their ready acquiescence to the second Trump administration’s illegal demands, would do well to double down on the research support they provide pro bono.) These challenges notwithstanding, the Chiquita and BNP Paribas cases show what is possible.
Criminal Laws and Foreign Courts
Most serious ATS cases involve violations that fall afoul of international criminal laws that have been widely incorporated into domestic criminal codes in the United States and abroad. (Indeed, for States that have joined the International Criminal Court such domestic incorporation is required). Moreover, many of these violations constitute international crimes so serious that they can be prosecuted under universal jurisdiction (UJ); in defiance of normal procedures such UJ cases come within the jurisdiction of a court even when that court lies outside the country where the crime took place, or where the alleged perpetrators or victims are from.
During the Bush administration’s so-called Global War on Terror, UJ cases became a political lightning rod as European prosecutors sought to prosecute U.S. officials for war crimes such as torture by U.S. military personnel at Abu Ghraib prison in Iraq. None of these cases went forward, and for a time there was little political will to see domestic prosecutors in any country pursue UJ cases. But recently that has begun to change.
In the 2010s, French prosecutors started investigating war crimes and crimes against humanity committed by ISIS in Syria, allegedly with the complicity of the French cement company, Lafarge. The investigations into Lafarge’s role in aiding and abetting war crimes and crimes against humanity is ongoing, but already a court in Paris has found Lafarge executives guilty of financing ISIS.
Around the same time, Swedish prosecutors began looking into war crimes and crimes against humanity committed by the Sudanese government, and allegedly aided and abetted by multinational oil companies – including the Swedish company Lundin. Trial proceedings in that case wrapped up in May, and I was in the courtroom in Stockholm during Lundin’s closing arguments. Sitting alongside me were South Sudanese survivors, including those who had been plaintiffs in an ATS case against another of the multinational oil companies accused of enabling the Sudanese government’s atrocities. The ATS route proved a dead end for them but they are hopeful that this prosecution in Sweden will bring justice. A verdict is expected by the end of this year.
Again, it is important not to be starry-eyed about the UJ pathway. Just as transitory torts present a greater challenge to litigate than the ATS, so too UJ cases are tough to pursue. At the ground level, they require domestic prosecutors, trained in local law, to expend limited personnel and budgets on crimes that took place in a foreign location and often many years ago, and usually involving a foreign language.
In practice today, even nominally UJ cases often have a tie to the country where the case is being prosecuted–either because victims or defendants have sought asylum there or, in the case of corporate defendants, because they have headquarters or a subsidiary in the prosecuting country. And even with these ties, the incentives for domestic prosecutors are not aligned in favor of bringing such cases.
Incentive structures, however, are not pre-ordained. With the ATS now clearly shut off as a avenue for survivors of crimes as serious as genocide, there is an opportunity to re-imagine the role that UJ cases should be playing in the accountability landscape. Here, there is scope for an all-hands-on-deck effort.
Law professors can bolster UJ cases (and indeed transitory torts) in their casebooks and syllabi where once they may have given space to the ATS. This, in turn, can nurture a new generation of human rights-minded graduates, open to looking creatively at the post-ATS landscape. But the effort must break beyond the walls of the legal profession.
Domestic prosecutors can only draw on the public purse to pursue time and labor- intensive UJ cases with political support. This is where the public can serve as a bulwark against impunity. Tellingly, the prosecutors in both the Lafarge and Lundin cases moved into action after the companies’ complicity in horrific crimes were laid out in the mainstream media by investigative journalists and civil society advocates, prompting widespread public outcry over allegations. It has always been the case that the survivors of severe human rights violations have needed many others to work alongside them as they seek justice. In hindsight, we may look back and conclude that one contributing factor to the U.S. Supreme Court shutting down the ATS was that the arcane-sounding one-sentence statute never had a broad public constituency to fight for it. If so, that would be an important weakness to avoid going forward.
When One Doors Closes
As explained above, the ATS was never the only option in U.S. courts, nor was tort law the only option more generally, for pursuing accountability for serious human rights violations. The transitory tort and UJ approaches present challenges, but not insurmountable ones. And, of course, these still represent just a slice of the many approaches to seeking accountability for survivors. There are other legal avenues, but also regulatory, educational, and movement-based options, among others, available. There is no one-size-fits all remedy for the many and diverse communities of survivors; we need to keep all options on the table. This is especially true given that one key lesson from the demise of the ATS is that any vehicle for justice that starts to hold powerful interests in check is vulnerable to backlash; developing expertise across a range of accountability strategies is essential.
The ATS is dead, and no one should minimize that loss. Indeed, it was the ATS that the Fourth Circuit Court of Appeals affirmed in March would provide three of the victims of notorious torture, cruel, inhuman and degrading treatment at Abu Ghraib, with long-sought damages (a victory that the Cisco decision puts in jeopardy). Yet, as surely as day follows night, survivors will continue their quest for justice and accountability. The Supreme Court’s decision on Tuesday marks the end of an era, but a new dawn awaits.
