Will Filartiga Survive?

On September 16, the Fourth Circuit will hear oral argument in Warfaa v. Ali, a case brought by the Center for Justice and Accountability under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging war crimes and other violations of fundamental human rights. Warfaa is the first significant ATS suit against a non-corporate defendant to reach the court of appeals level since the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It will test whether the line of cases against individual human rights violators that began with the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala has survived Kiobel.

Filartiga held that a Paraguayan police inspector who had come to the United States could be sued under the ATS for torture he committed in Paraguay. The Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain seemed to endorse these kinds of suits, implying a federal common law cause of action for violations of international law norms that were generally accepted and specifically defined and citing Filartiga itself with approval. But nine years later in Kiobel, the Court applied the presumption against extraterritoriality to causes of action under the ATS, holding that when the relevant conduct took place outside the United States, the claims must “touch and concern” the territory of the United States with enough force to displace the presumption. Kiobel involved claims against a foreign corporation, and most of the decisions applying Kiobel (reviewed here) have similarly involved corporate defendants. So what are Kiobel’s implications for Filartiga-type cases against foreign individuals rather than corporations?

The answer depends on Kiobel’s final paragraph:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

Appearing to read no further than the first sentence of this paragraph, the district court in Warfaa concluded that human rights claims under the ATS must generally “be based on violations occurring on American soil.” But the rest of Kiobel’s key paragraph refutes that conclusion.

First, the Supreme Court was careful to say that the “claims” must touch and concern the territory of the United States, not that the conduct must occur in the United States. The latter position was the one Justice Alito urged in his concurring opinion, but only Justice Thomas agreed. Indeed, Justice Alito acknowledged the difference between his approach and the majority’s in the first paragraph of that concurring opinion. Thus, the Fourth Circuit was correct to conclude in an earlier decision, Al Shimari v. CACI Premier Technology, Inc., that “it is not sufficient merely to say that because the actual injuries were inflicted abroad, the claims do not touch and concern United States territory.”

Second, the Supreme Court’s observation that “[c]orporations are often present in many countries” suggests a distinction with ATS claims brought against individual defendants. The defendant in Kiobel, Royal Dutch Petroleum, was an Anglo-Dutch corporation subject to personal jurisdiction in the United States only because it did other business here (a basis for jurisdiction the Court abolished the year after Kiobel in Daimler AG v. Bauman). The governments of the Netherlands and the United Kingdom argued that any suit against Royal Dutch Petroleum should be brought in their courts, not those of the United States. In contrast to corporations, individual defendants are not present in many countries at once and typically can only be sued where they reside. The defendant in Warfaa, Yusuf Abdi Ali, is a permanent resident of the United States, who has lived here continuously since 1996. He could not be sued in Somalia even if Somalia had a functioning court system.

Another threat to the Filartiga line of cases is the doctrine of foreign official immunity. The district court in Warfaa denied the defendant Ali’s claim of immunity with respect to plaintiff’s TVPA claims, and Ali has appealed that decision. Former officials like Ali are entitled to immunity only for their official acts, and the Fourth Circuit correctly noted in Yousuf v. Samantar that “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Thus, “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Ali argues that this holding conflicts with those of other circuits and with international law, but he is right on neither point. As I have explained previously, while some circuits have held that there is no jus cogens exception to an immunity that has already attached, there is no circuit split on the question whether jus cogens violations are official acts to which immunity attaches in the first place. Nor is there a general and consistent practice of states extending official act immunity to jus cogens violations, as would be necessary to support a customary international law rule.

In correspondence with the Government of Somalia in connection with the Samantar case, the State Department confirmed its understanding that Somalia did not wish to seek immunity for either Samantar or Ali. On the question of foreign official immunity, then, the Warfaa case is indistinguishable from Samantar. In both cases, the alleged official acts are jus cogens violations. In both cases, the foreign government has declined to seek immunity. And in both cases the State Department has declined to seek immunity, filing a determination of non-immunity in Samantar, and remaining silent with respect to Ali. Thus, under Fourth Circuit precedent, which the Supreme Court recently declined to review, the defendant Ali is not entitled to immunity.

In short, human rights suits against individuals differ in important ways from those against corporations. On the one hand, they may raise questions of foreign official immunity not typically found in the corporate context. On the other hand, they clearly raise distinct issues of legal policy, particularly when the human rights violator has sought a safe haven in the United States. The Solicitor General’s supplemental brief in Kiobel was sensitive to these distinctions. He noted that “[w]hen an individual foreign perpetrator is found residing in the United States, the perpetrator’s ties to the U.S. are stronger and often more lasting.” He also noted that “allowing suits based on conduct occurring in a foreign country in the circumstances presented in Filartiga is consistent with the foreign relations interests of the United States, including the promotion of respect for human rights.” One can only hope that the lower federal courts will be similarly sensitive to the differences between suits against individuals and those against corporations as they consider whether Filartiga will survive. 

About the Author(s)

William S. Dodge

Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.