When one considers ways in which the United States can exert advocacy of greater human rights protections in Africa, nongovernmental organizations, the State Department, and multilateral institutions such as the United Nations come to mind. When I first considered the question, before studying international law in law school, the judicial system of the American courts never appeared on the radar. But the little-known Alien Tort Statute, a law on the books in the United States since 1789, has the potential to dramatically change the landscape for human rights and corporate accountability in Africa and throughout the globe.

The Alien Tort Statute provides, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Essentially, assume a hypothetical scenario: an alien (noncitizen) is killed in another country by its government’s agents acting under the color of official authority (extrajudicial killing is a clear violation of international law), and the spouse of the alien, who is a U.S. citizen and resident of Iowa, files a wrongful death suit in a district court in Iowa – the court would have jurisdiction over the matter (assuming one more thing). Now, assuming the person responsible could be properly found and given service of process in the United States, the Alien Tort Statute would apply!

A fairly dormant statute for nearly 200 years, the Alien Tort Statute was given life in a 1980 case, which was decided by the U.S. Court of Appeals for the Second Circuit. In Filartiga v. Pena-Irala, Paraguayan citizens brought a wrongful death action in a district court in New York against another Paraguayan citizen who utilized torture in causing the death of their son during the authoritarian regime of President Alfredo Stroessner. In a landmark decision, the Court held “that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties” (Filartiga, p. 878). Since this landmark decision recognizing the validity of a significant portion of international law in domestic courts, other significant cases have been filed which have invoked the statute.

One of the main controversial and contentious issues litigated in Alien Tort cases is the extent of what violations “of the law of nations” fall under the ambit of the law. In 2004, the United States Supreme Court rendered a crucial decision in Sosa v. Alvarez-Machain, interpreting the reach of the statute. Traditionally, only three violations of international law were actionable by the statute: 1) offenses against ambassadors, 2) violations of safe conduct, and 3) individual actions arising out of prize captures and piracy. The Court in Sosa held that “courts should require any claim based on the present-day law of nations [international law] to rest on a norm of international character accepted by the civilized world and defined with … specificity” (Sosa, p. 725). Today, the Court decision in Sosa generally has been understood to include jus cogens (peremptory) norms as norms of international law which are actionable under the statute— norms such as the prohibition on torture, cruel, and unusual punishment; prohibition of genocide; prohibition of slavery; and the prohibition of extrajudicial killing, to name a few.

The Court decision in Sosa attempted to define the reaches of the statute, but its parameters are still unclear as a practical matter. However, one new avenue in the litigation over the statute has wide-reaching implications for U.S. corporations that do business overseas. It is highly contentious whether corporations should be held accountable for their actions under the statute if they are involved in human rights abuses committed overseas. In John Doe I  v. Unocal Corp., 395 F.3d 932, 947 (9th Cir. 2002), the Ninth Circuit Court of Appeals adopted an “aiding and abetting” standard to judge corporate liability under the statute— if a company “gives knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime,” then liability may result (Doe, p. 947). In Unocal, citizens of Myanmar brought suit against Unocal for their alleged complicity in human rights abuses, including forced labor, murder, rape, and torture committed by the military of Myanmar during construction of a gas pipeline by Unocal in the country (Doe, p. 947).

While it is unclear how far U.S. courts will go in applying liability for violations of the statute, there are indications that the Alien Tort Claims Act is a new tool for human rights in Africa. Just last month, several Mauritanian exiles filed a lawsuit against the former President of the Islamic Republic of Mauritania, Maanouya Ould Sidi Ahmed Taya (AllAfrica.com, “Exiles’ Lawsuit Shines Light on Past Abuses”). They alleged torture and “gross violations of human rights” from 1989 to 1991 (AllAfrica.com). In the past several years, other cases have been filed; in one recent case, Presbyterian Church of Sudan, et. al, v. Talisman Energy, Inc., et. al., for instance, several current and former residents of the Sudan alleged that Talisman Energy worked in tandem with the Republic of the Sudan to “ethnically cleanse” civilian populations around oil concessions in the southern Sudan to facilitate oil exploration.

Will the Alien Tort Statute become a powerful new tool for human rights in Africa? A case currently in trial in front of an Alabama jury might go a long way toward answering the question. Drummond Company, an Alabama-based coal producer, has been accused of hiring paramilitary hit men that killed three union leaders in Colombia in 2001 (Washington Post, “U.S. Firm on Trial in Colombia Slayings”). If the case is successful for the families of the slain union members, then the Alien Tort Statute might very well become a powerful, vital check of accountability for human rights throughout Africa and the globe.

References:

AllAfrica.com. (June 7, 2007). “Exiles’ Lawsuit Shines Light on Past Abuses.” http://allafrica.com/stories/200706070962.html

Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir.1980).

John Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).

Presbyterian Church of Sudan, et. al., v. Talisman Energy, Inc., et. al., 244 F.Supp.2d 289 (S.D.N.Y. 2003).

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

Washington Post. (July 13, 2007). “U.S. Firm on Trial in Colombia Slayings.” http://www.washingtonpost.com

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