Victims of human rights abuses abroad scored a win recently, when the U.S. District Court for Eastern Pennsylvania ruled in Jane W. et al. v. Thomas that claims involving war crimes and crimes against humanity that were committed entirely in Liberia can be brought under the Alien Tort Statute (ATS).
In considering a motion to dismiss a complaint concerning one of the single deadliest attacks against civilians in Liberia’s history, the court found that the plaintiffs’ ATS claims sufficiently “touch and concern” the United States to “displace the presumption against extraterritorial application.” That test was first articulated in Kiobel v. Royal Dutch Petroleum to overcome a canon of statutory interpretation that presumes U.S. laws, unless contrary congressional intent appears, do not apply to acts committed entirely in the territory of a foreign nation.
Since the Supreme Court’s decision in Kiobel, courts have struggled to interpret the “touch and concern” exception (compare Al Shimari v. Caci and Doe v. Nestle with Adhikari v. KBR and Warfaa v. Ali). This is the first decision in the Eastern District of Pennsylvania to provide a factual analysis on the Kiobel test. As such, it provides some guidance on a legal standard that has proven elusive for victims of violations of customary international law who are seeking redress in U.S. courts.
The plaintiffs in the case are survivors of the St. Peter’s Lutheran Church Massacre on July 29, 1990, in the capital Monrovia. As described previously at Just Security, the attack occurred at the start of the two civil wars that consumed Liberia for 14 years. Soldiers from the Special Anti-Terrorist Unit (SATU) of the Armed Forces of Liberia (AFL)– led by the defendant, Moses Thomas — allegedly executed approximately 600 unarmed men, women, and children who had sought refuge from hostilities in the church.
At the time of the massacre, the church, clearly marked with Red Cross emblems, was providing refuge and humanitarian assistance to more than 2,000 civilians. Government soldiers entered the church in the dead of night and opened fire on the unarmed civilians sleeping inside. Despite widespread condemnation of the attack by humanitarian groups and foreign embassies, the Liberian government has yet to investigate or prosecute any perpetrators of the attack.
Limited Options for Justice
At present, justice against the alleged commander of the attack is only possible in the United States. While a Truth and Reconciliation Commission in Liberia recommended in 2009 the establishment of an Extraordinary Criminal Court there to investigate and prosecute civil war abuses, the implementing legislation for the court has not yet been passed. Moreover, no international criminal tribunal currently has jurisdiction over Liberia’s wartime atrocities. Thomas was one of the massacre’s alleged commanders and is a longtime U.S. resident, subject only to the laws and jurisdiction of U.S. courts.
So the plaintiffs, all residing in Liberia, filed suit in February 2018 in Pennsylvania through counsel at the Center for Justice & Accountability and Debevoise & Plimpton. They are relying on laws such as the ATS and the Torture Victims Protection Act (TVPA), which allow victims to seek redress for violations of international law, including extrajudicial killings, torture, war crimes and crimes against humanity where no such remedy is available in their home country.
The Dec. 14 decision on the motion to dismiss is noteworthy in that it conferred jurisdiction over claims brought by foreign plaintiffs against a foreign defendant for acts committed on foreign soil (referred to as “foreign cubed” cases) under the ATS. The ATS provides federal courts with jurisdiction over civil tort actions brought by aliens for “violation[s] of the law of nations or a treaty of the United States.”
Since the 1980 case of Filartiga v. Peña-Irala, the ATS has been used to seek redress for claims involving torture, state-sponsored sexual violence, extrajudicial killing, crimes against humanity, war crimes, and arbitrary detention. In the 2012 Kiobel decision, the Supreme Court held that the ATS does not apply to wholly “extraterritorial” claims and that claims under the ATS must “touch and concern” the United States “with sufficient force to displace the presumption against” extraterritoriality.
Whether or not claims “touch and concern” the United States depends on the specific facts of a case, and few courts have provided positive examples of factors sufficient to rebut the Kiobel presumption against extraterritoriality. The Torture Victims Protection Act, on the other hand, is explicitly extraterritorial and does not require a connection to the United States to proceed, as long as the individual perpetrator is within reach of the court. However, the TVPA is limited to claims of torture and extrajudicial killing, and therefore does not cover the broader class of violations such as war crimes and crimes against humanity alleged in this case.
U.S. Contacts, Residence, Location
In the present case, the court found a few factors relevant to the touch-and-concern exception, including the defendant’s contacts and residence in the United States, and the involvement of territory controlled by the United States, even though it was foreign. Specifically, the plaintiffs allege that 1) the attack on St. Peter’s Lutheran Church included a violent raid on a U.S. Agency for International Development compound in Liberia under the control of the U.S. government; 2) the defendant resides in the United States; and 3) the defendant fraudulently benefited from a U.S. immigration program designed to benefit the very victims of the atrocities he perpetrated during the Liberian Civil War. The court found that these allegations were sufficient at this stage to establish jurisdiction under the Kiobel test. The case will now proceed into discovery.
By bringing this suit, the plaintiffs have joined a number of Liberian survivors trying to address the impunity for civil war atrocities against perpetrators who fled to foreign countries. In 2009, the U.S. convicted Charles “Chucky” Taylor, Charles Taylor’s son, for torture. U.S. attorneys in Philadelphia last year successfully won convictions against former rebel commander Mohammed Jabbateh and former National Patriotic Front (NPFL) Defense Minister Tom Woewiyu for immigration fraud related to human rights abuses in Liberia.
Outside the United States, in 2014, NPFL Commander Martina Johnson was charged in Belgium for atrocity crimes. Since 2016, United Liberation Movement (ULIMO) Commander Alieu Kosiah faces charges in Switzerland for crimes against humanity and torture. In 2018, French authorities arrested Kunti K, another ULIMO commander for torture and other atrocities he committed during the civil war. Later this year, Agnes Reeves Taylor will face trial in the United Kingdom for her alleged role in torture and NPFL abuses in Liberia.
To date, these are the only criminal proceedings brought for crimes committed during the Liberian civil wars. Although the Special Court for Sierra Leone in 2012 convicted the former Liberian President and NPFL leader Charles Taylor of war crimes and crimes against humanity committed in Sierra Leone, that conviction did not relate to any of the atrocities he committed in Liberia.
The civil suit against Moses Thomas presents another opportunity for victims to seek justice for the crimes committed during the Liberian civil wars. The recent decision denying Thomas’ motion to dismiss provides guidance to victims of serious human rights abuses, such as torture and war crimes, on how the Eastern District of Pennsylvania, and perhaps other courts, will determine whether their claims have a sufficient nexus with the United States that they can seek redress using the ATS.
The case against Moses Thomas now will proceed into discovery, with trial likely sometime in 2020. The quest for justice in Liberia marches on, with cases proceeding around the world and grassroots calls for a domestic mechanism to try civil war-era war crimes growing daily.