Evidence of brutalities committed by Russian forces against Ukrainian civilians has been flooding out of Ukraine ever since Russia invaded on Feb. 24, 2022. The devastated city of Lyman in eastern Ukraine, which was recently recaptured by Ukrainian forces, provides just one of the latest examples of a city subjected to the most horrific war crimes, crimes against humanity, and perhaps even acts of genocide.
The daily evidence of atrocities has helped ignite an effort in the U.S. Congress to ensure that the United States will not become a safe haven for those responsible for these horrors. Last month, the Senate Judiciary Committee held a public hearing on a proposed bill to expand the U.S. war crimes statute to allow the Department of Justice to prosecute foreign war criminals in the United States and a separate bill to allow the Department of Justice to prosecute individuals for crimes against humanity. At the hearing, Senator Jon Ossoff (D-GA) raised the importance of complementing these expansions of criminal accountability with renewed legislative attention to the Alien Tort Statute (ATS) – a brief statute enacted by the First Congress in 1789 that allows non-U.S. citizens or nationals to file tort claims for violations of international law in U.S. federal courts
As one of us previously wrote with Bill Dodge in Just Security, Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) introduced the Alien Tort Statute Clarification Act (ATSCA) back in May 2022 to do just that. By affirming that the ATS applies extraterritorially and thereby ensuring that non-Americans have the opportunity to file civil suits in U.S. courts for violations of international law that occur abroad (as long as they are consistent with existing rules of immunity and personal jurisdiction), the ATSCA would allow victims to play a role in punishing those responsible for the horrors they have suffered. Without both new pieces of legislation – criminal and civil – it is likely that some of those responsible for the violations in Ukraine could ultimately join the thousands of other war criminals and human rights violators who have found a safe haven in the United States. It is therefore urgent that Congress take steps to enact the ATSCA as soon as possible.
A Brief History: Has the Alien Tort Statute Made a Difference?
In our recently published article, Has the Alien Tort Statute Made a Difference?: A Historical, Empirical, and Normative Assessment, we compiled every ATS case that resulted in a published opinion and confirmed a long-standing hypothesis that the Supreme Court’s ruling in 2013 in Kiobel v. Royal Dutch Petroleum, which held that only a limited number of ATS cases can overcome the presumption against extraterritoriality, has been the most significant reason for ATS suit dismissals in the last decade. Our analysis, which includes both empirical analysis of 531 published opinions – from 300 distinct lines of cases – and qualitative evidence from interviews with participants in ATS suits, shows that the statute has played a substantial role in achieving justice for individuals and communities that have faced human rights violations around the world. ATS suits have also importantly contributed to the global development of human rights norms, even as the ATS cause of action was eroded in a series of Supreme Court decisions during the 2000s.
The ATS was invoked only rarely in the almost two centuries before the Second Circuit’s now famous 1980 ruling in Filártiga v. Peña-Irala. There, the court held that the family members of a Paraguayan political dissident had a valid claim under the ATS against a former Paraguayan official living in the United States for the torture and killing of their relative in Paraguay in 1976. When lawyers from the Center for Constitutional Rights brought the Filártiga case, civil suits alleging violations of international law were rare both in the United States and around the world. At the time, the ATS was seen as one of the only tools globally to enforce international human rights law in domestic courts. For about three decades thereafter, ATS suits grew rapidly in the United States, reaching a high point in the early 2000s when federal courts around the country were consistently issuing between 20 and 40 published opinions on ATS cases every year.
Our analysis of the entire history of ATS cases shows that, judged by the money awards granted to plaintiffs, the ATS has been something of a disappointment. Only 25 cases resulted in monetary judgments for the plaintiffs that were not later overturned. Only six of these judgments appear to have been successfully collected, and only partially. However, that is not the entire story: we also documented 33 settlements in ATS cases, many of which were in the millions of dollars and over half of which were in suits against corporations. A settlement with oil company Unocal allowed Burmese plaintiffs to rebuild homes and communities in the areas where they had been violently displaced by company security forces. Some material benefits to plaintiffs in ATS suits came about even without a court judgment or settlement. Even though the Liberian plaintiffs in Flomo v. Firestone ultimately lost their ATS suit in court, a participant in the lawsuit explained to us that the public attention on the poor labor conditions at Firestone’s rubber plantations resulted in the company “voluntarily” building a new school and several new homes for plantation workers.
In interviews, participants in ATS suits highlighted normative benefits arising from the suits. Truth-telling, exposing wrongdoers, reclaiming dignity, contributing to improved practices, and strengthening respect for international law were often the driving forces behind ATS suits, and many participants described the outcomes of ATS suits in these terms. Two plaintiffs in an ATS suit against U.S. government contractors who had implemented the CIA’s torture programs described getting a great deal of satisfaction out of telling their story over the course of litigation. Moreover, the rise in ATS suits arguably contributed to legislative and policy change. Interviewees linked growing attention to ATS suits to legislative enactments including the passage of the Torture Victim Protection Act of 1991 (TVPA) and the inclusion of corporate liability in the Trafficking Victims Protection Act, first enacted in 2000 and reauthorized most recently in the Trafficking Victims Protection Reauthorization Act of 2017 (TVPRA). Many of our interviewees, including the late (and very much missed) John Ruggie, the former U.N. Special Representative for Business and Human Rights, also viewed ATS suits as having contributed to the broader business and human rights agenda, including the development of the United Nations Guiding Principles on Business and Human Rights, perhaps helping motivate corporations to internalize some of the goals of the human rights community.
As the profile of the ATS grew and an increasing number of cases were filed, including against U.S. government officials, allied governments of the United States, and powerful corporations, there was greater pushback against ATS cases. Starting in 2004 with the decision in Sosa v. Alvarez-Machain, the Supreme Court curtailed the scope of the ATS. That first decision confined the ATS cause of action to specific, universal, and obligatory norms of international law. Interestingly, this decision had little impact on the cases brought, as courts had long cast a skeptical eye on international law claims – hence the scrutiny was nothing new. The steepest drop off in ATS opinions came after the Supreme Court’s ruling in Kiobel in 2013, restricting the territorial scope of the ATS. This decision has been profound because most ATS suits have been brought for violations that took place outside the United States. In our database, only 75 cases were brought for harm that occurred in the United States, while the remaining 220 were brought for violations abroad, including in 95 different countries. (There are 300 lines of cases in our database in total, because some cases split into separate strands as they progressed through the courts.) In 2021, the Court extended its ruling on extraterritoriality in Nestlé USA, Inc. v. Doe, holding that U.S. corporations could not be sued for aiding and abetting child slavery in Ivory Coast because their conduct within the United States amounted only to general corporate decision-making while all other activity related to the allegations occurred abroad. By severely limiting the application of the ATS to U.S. corporations aiding and abetting abuses in other countries, the decision has further restricted the utility of the ATS as a tool for advancing human rights.
The Potential for Revival Through the Alien Tort Statute Clarification Act
The ATSCA would revive the ATS cause of action by clarifying that the statute applies extraterritorially. The text of the ATSCA provides that “the district courts of the United States have extraterritorial jurisdiction over any tort [covered by the ATS if] . . . an alleged defendant is a national of the United States or an alien lawfully admitted for permanent residence . . . or an alleged defendant is present in the United States, irrespective of the nationality of the alleged defendant.” The extraterritorial application of the ATS has always made sense given the transnational nature of international law. For example, enforcing the prohibition on piracy, one of the oldest and most well established norms of international law and which the courts have uniformly recognized is a cause of action that can be maintained under the ATS, has almost always required U.S. courts to adjudicate conduct that occurred outside of the territorial boundaries of the state. Justice Breyer articulated in his concurring opinion in Kiobel that “[c]ertainly today’s pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are ‘fair game’ where they are found.”
The Supreme Court has repeatedly invited Congress to clarify the scope of the ATS if it misread Congress’s intent. The ATSCA is an answer to that request – it would reassert Congress’s authority over the scope of the ATS and clarify that, yes, the United States intends to play its role in disciplining human rights abusers with sufficient connections to the United States.
The ATSCA would ensure that U.S. federal courts have jurisdiction to hear cases against those who commit violations of the most fundamental norms of international law if perpetrators come to the United States or are otherwise subject to personal jurisdiction in the country – whether a human rights abuser who committed atrocities abroad before seeking refuge in the United States or a corporation based in the United States seeking unfair competitive advantage. Small and mid-sized companies argued in an amicus brief in Nestlé that such jurisdictional clarity would in fact make good business sense and is important for leveling the playing field: Right now, U.S. businesses that violate international human rights abroad – by, for example, aiding and abetting violations of the human rights of communities that object to development projects – have an unfair advantage over those who do not, because the narrowed interpretation of the ATS’s jurisdiction prevents them from being held to account in U.S. courts. The ATSCA would take away that unfair advantage.
The erosion of the ATS cause of action’s extraterritorial application in the United States sets U.S. courts apart from the trend taking place in the rest of the world. Courts in several other countries, including Canada, the United Kingdom, the Netherlands, and France have recently held they can exercise jurisdiction over international law violations committed extraterritorially, including by corporations. The ATSCA would bring the United States back in line with the growing recognition that civil liability regimes that grant redress to foreigners are an important element of domestic courts upholding international law. And it would help ensure that U.S. courts are the ones who discipline U.S. corporations for such violations, rather than relying on courts abroad to clean up their messes.
A Revived ATS Within Broader Efforts to Protect Human Rights Today
To be sure, the ATSCA alone will not provide full material or normative relief to individuals or communities facing human rights violations around the world today. Our research also illustrates how a multi-pronged approach to human rights advocacy is necessary. While in the 1980s the ATS was seen as one of the only tools for seeking redress for victims of human rights abuses, today global activists use a variety of tools in seeking justice that should ideally work in tandem with one another. Increasingly, lawyers bringing human rights cases in wealthy nations are recognizing the importance of building coalitions with lawyers and legal activists around the world, including to strengthen efforts to bring cases before domestic courts in the countries where human rights violations occur. There should also be more attention directed towards non-adversarial approaches to addressing human rights violations, such as advocacy to strengthen the internal grievance mechanisms of international institutions and other efforts that are potentially less resource intensive than litigation. Legislatively, an increasing number of countries have been enacting mandatory corporate human rights due diligence laws aimed directly at closing the gaps in corporate accountability for aiding and abetting human rights violations abroad. The United States should follow suit to pass such obligations for U.S. companies, a proposal that some U.S. corporations have already supported.
The ATSCA, while not a panacea, would revive one important tool for protecting human rights. It deserves the attention of the Senate Judiciary Committee now.
(Editor’s Note: The third author has been removed at that author’s request due to a unique set of extenuating personal circumstances and with the principal authors’ agreement. No content has changed.)