Impunity on Trial: How a US Law is Helping Victims Hold Individuals and Corporations Accountable for the Most Serious Human Right Violations
Soldiers in Myanmar hired by a U.S. corporation raid a rural village, taking away able-bodied men and forcing them to work on the construction of a natural gas pipeline. The Nigerian military burns two villages to the ground after their inhabitants protest environmental and economic damage caused by an oil company. Private contractors hired by the US Military for translation and interrogation abuse Iraqi prisoners in Abu Ghraib Prison. All around the world, allegations like these continue to surface, suggesting that the voluntary guidelines corporations presently use to govern their conduct are not working. However, victims abroad have one weapon at their disposal; a rarely-used 18th century law revived 25 years ago that may provide a way to hold corporations accountable for their roles in grave violations of human rights.
What is the Alien Tort Claims Act?
Since 1979, the Alien Tort Claims Act has allowed foreign victims of human rights abuses to sue perpetrators who are present in the United States. Despite bitter opposition from the Bush Administration and business interests, the Supreme Court expressly upheld the law on June 29, 2004 in the case of Sosa v. Alvarez-Machain. In ruling for the Act, the Court reiterated that international law holds a fundamental place in the US legal system, and that to ignore that tradition “would take some explaining.” Today, the law apparently allows victims to sue for violations of international human rights norms that are “specific, universal and obligatory,” such as torture, war crimes and genocide.
Stopping those who act with impunity:
According to basic principles of justice, victims of human rights violations should have the right to achieve relief and redress for their injuries. When remedial measures are not available in their respective nations, the Alien Torts Claim Act provides victims with an alternative venue within which to seek justice. Laws like the ATCA serve to simultaneously heal and protect; providing the potential for closure to the victim, while deterring potential future abuses. These cases allow plaintiffs to tell their stories, possibly confront their attackers, and in some instances, receive monetary compensation for their injuries. Holding perpetrators accountable for their actions benefits Americans and foreigners alike by reinforcing universal recognition of human rights principles.
Who can victims sue?
While ATCA cases initially focused on government officials who where the actual wrongdoers, courts soon extended liability to those who bore indirect responsibility as well. Today, this includes superiors who order wrongful conduct, as well as those who have effective command and authority over those who commit serious human rights abuses. Ferdinand Marcos, among other former government leaders, has been held liable under the ATCA for his role in human rights violations that included torture, extrajudicial killing and arbitrary detention. The courts have also decided that for the most serious abuses, like genocide, war crimes and crimes against humanity it made no difference if the perpetrators were government officials or private citizens.
Focus on the role of business:
A growing number of cases have focused on the role of multinational companies in violations of international human rights laws. These cases generally argue that corporations should be held responsible when they play a role in crimes that violate customary international law. For example, citizens of Myanmar (Burma) filed a suit against Unocal, a U.S. company, for its role in supporting atrocities committed by the military against rural villagers. The complaint alleged that because the company hired the Military to help construct and protect a natural gas pipeline, it should be held as an accomplice in crimes against humanity, which included forced labor, torture, rape and murder. The plaintiffs scored a major victory in December 2004 when the parties agreed to settle the lawsuit, ensuring that the villagers will receive some form of compensation for their losses. These cases could spark serious changes in the way multinational corporations prioritize human rights within their day-to-day business operations.
Despite the huge potential benefits of using ATCA to reign in corporate involvement in human rights violations, the current presidential administration argues that the law leads to unpredictable results and has sparked a flood of frivolous litigation against corporations. However, these assertions are dubious: Of the approximately two-dozen cases filed against corporations since the early 1990’s, none have yet reached trial. The government’s position ignores the fact that U.S. companies should never be involved in the commission of such atrocities nor should they be tempted to weigh human rights abuses against the bottom line. Forward looking companies that develop and implement comprehensive human rights policies in order to ensure that they are not involved in such abuses will have nothing to fear.
Defending ATCA:
Over the past three years, the Bush administration has waged an active campaign to undermine the Alien Tort Claims Act. Their two-pronged attack argues first that the statute is not good law, and second, that ATCA cases patently interfere with the implementation of US foreign policy, including the "War on Terror." For example, in Doe v. ExxonMobil, eleven Indonesian villagers sued ExxonMobil for knowingly supporting Indonesia's military in return for protection of its operations there. The plaintiffs believed that Exxon knew that the military was committing murder, torture and other human rights violations in order to control the volatile area. Asked for its opinion, the US State Department argued against the villagers, claiming that such a lawsuit might lead to the loss of Indonesia's help in the war against terror, and also result in greater instability by triggering an exodus of foreign investment. Not only is this position a deviation from the policies of the past four presidential administrations, it has also found only limited support from the judiciary. While the recent Supreme Court decision acknowledges the need to show deference to legitimate foreign policy concerns of the Executive branch, the ruling was a sharp rejection of the Administrations attempt to assert its primacy over fundamental principals of international law.
The Supreme Court decision has provided a reasonable and pragmatic approach that deserves a chance to succeed. Now is hardly the time to undermine the potential for justice and fairness that the ATCA provides to victims of human rights violations. The United States should be seen at a leader in promoting accountability, rather than a power that allows individuals, governments and corporations to act with impunity. By standing behind the ATCA the U.S. can reinforce its stance against human rights abusers and simultaneously maintain efforts at assuring our nation’s own peace and security.
