Prosecuting crimes against humanity

August 11, 2015
Stewart Pollock & Vincent Sebastinelli
Daily Journal

The Alien Tort Statute provides a civil cause of action in federal courts for violations of international law. The ATS states, "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."

In 1789, when the statute was enacted, the only recognized violations of international law were piracy, violations of safe conduct, and infringements on the rights of ambassadors. Today, "courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." Filartiga v. Pena Irala,630 F.2d 876 (2d. Cir. 1980). This includes crimes against humanity, torture and genocide.

The ATS provides an important mechanism for victims of the most horrific wrongs to vindicate their claims in U.S. courts and to obtain compensation to assist in repairing their lives. However, U.S. courts have increasingly erected barriers to justice for these victims.

One such barrier is the "political question" doctrine, a judicially created doctrine rooted in the principles of separation of powers and judicial restraint. If ruling on an issue would require a political determination, the judiciary may defer to the executive branch. The preeminent case on the issue is Baker v. Carr, which set out a six-part test, listed in descending order of importance. 369 U.S. 186, 217 (1962); see Vieth v. Jubelirer, 541 U.S. 267, 278 (2004).

One factor is the potential for embarrassment if the judiciary decides to hear a case and issue a judgment. Regrettably, some courts have used this factor to create an insurmountable barrier for victims of atrocities committed by the U.S. and its allies: If the U.S. was not involved, it cannot be held liable because it has committed no wrong but, if the U.S. was involved, it cannot be held liable because to do so would violate the political question doctrine. See, e.g., Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005).

In 2013, the U.S. Supreme Court dismissed Kiobel v. Royal Dutch Petroleum Co., which addressed the jurisdictional scope of the ATS. 133 S. Ct. 1958, 1669. In that case, Nigerian citizens alleged that oil companies aided and abetted the Nigerian government's crimes against humanity that involved violently suppressing peaceful demonstrations opposing oil development. The Supreme Court dismissed the case based on the presumption against extraterritoriality, which holds that the judiciary ought not apply statutes to extraterritorial conduct unless there is a clear legislative intent to do so. SeeMurray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Because there was no such statement in the ATS, the court declined to extend the ATS to wholly extraterritorial conduct.

Kiobel added a "touch and concern" clause to the already narrow requirements of the ATS that the claim arise out of a violation of international law that is "specific, universal, and obligatory." However, the "touch and concern" test was never fully defined and has remained ambiguous as to the degree of nexus required. Thus, any international violation, such as crimes against humanity, could be the basis for a claim so long as the court deems there to be a sufficient effect within the U.S.

Last month, the 2nd U.S. Circuit Court of Appeals dismissed a case based on a narrow reading of the touch and concern test. Balintulo v. Ford Motor Co., 14-3589 (July 27, 2015). In Balintulo, South African citizens filed suit against Ford Motor Co. and IBM for aiding and abetting the South African government's crimes against humanity during apartheid. The plaintiffs alleged that Ford and IBM supplied the South African security forces with specialized vehicles and specifically designed technologies, respectively, that enabled them to suppress opposition to apartheid.

The Balintulo court held that because Ford was the parent company and the alleged conduct was committed by its subsidiary in South Africa, no alleged wrong doing occurred in the U.S., thus, failing the touch and concern test. It was found that even though IBM passed the touch and concern test, because the technologies used by South African security forces to commit its crimes were developed in the U.S., it did not aid and abet its subsidiary because it did not knowingly supply South Africa with the purpose of enabling the alleged crimes.

Balintulo applied the vague touch and concern test in a manner that failed to elucidate the limits of extraterritorial application in part because the positions reached regarding IBM and Ford parent companies' liability appear inconsistent. The court held that IBM designing the product in question in the U.S. was sufficient to establish jurisdiction in the U.S. But does Ford not design its vehicles in the U.S. as well? It appears the 2nd Circuit worked backward from the result it desired - a dismissal - and used its broad discretion in interpreting the ambiguous extraterritoriality requirement to obtain that result.

If future courts follow Balintulo, U.S. companies will be free to profit off of crimes against humanity simply by setting up a subsidiary and claiming ignorance of misconduct. Victims of horrific crimes against humanity are already ill equipped to litigate against multi-national corporations. The extraterritoriality requirement, when considered against the recent application of the political question doctrine, creates an insurmountable barrier to justice for victims of horrific wrongs. Hopefully, Balintulo is a limited precedent and not indicative of future decisions on the application of the ATS or the courts will have effectively rendered the ATS a nullity and barred victims from vindicating their claims in U.S. courts.