| Alien
Tort Claims Act |
Recently, American courts have begun adjudicating civil liability
for intentional torts and crimes under the Alien Tort Claims Act (ATCA),
28 U.S.C. §1350. The development of this action is recounted
in Wiwa v. Royal Dutch Petroleum Co., ___ F.3d ___, (2d Cir. 2000).
That case involved civil suits brought against international Shell
Oil defendants for the executions of several Nigerians, including
prominent author Ken Saro Wiwa, arising out of disputes over the development
of oil resources in the homeland of the Ogoni people. Plaintiffs alleged
that, although the government of Nigeria tortured and executed the
claimants and their decedents, these abuses were "instigated,
orchestrated, planned, and facilitated by Shell Nigeria under the
direction of the defendants," who were said to have "provided
money, weapons, and logistical support to the Nigerian military .
. . , participated in the fabrication of murder charges . . . , and
bribed witnesses to give testimony." After finding personal jurisdiction,
the court turned to the defendants' argument that the case should
be pursued in England because of forum non conveniens. The plaintiffs
asserted that in addition to the ATCA, the 1991 passage of the Torture
Victim Prevention Act, 28 U.S.C. §1350 App, argued for keeping
the cases in the United States. In addressing that issue, the court
extensively reviewed the scope of these statutes:
The Alien Tort Claims Act was adopted in 1789 as part of the original
Judiciary Act. In its original form, it made no assertion about legal
rights; it simply asserted that "[t]he 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." 28 U.S.C. § 1350. For almost two centuries,
the statute lay relatively dormant, supporting jurisdiction in only
a handful of cases. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876,
887 & n. 21 (2d Cir.1980) (identifying only two previous cases
that had relied upon the ATCA for jurisdiction). As the result of
increasing international concern with human rights issues, however,
litigants have recently begun to seek redress more frequently under
the ATCA. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996)
(alleging torture of Ethiopian prisoners); Kadic v. Karadzic, 70 F.3d
232 (2d Cir.1995) (alleging torture, rape, and other abuses orchestrated
by Serbian military leader); In re Estate of Ferdinand Marcos, 25
F.3d 1467 (9th Cir.1994) (alleging torture and other abuses by former
President of Phillippines); Tel-Oren v. Libyan Arab Republic, 726
F.2d 774 (D.C.Cir.1984) (alleging claims against Libya based on armed
attack upon civilian bus in Israel); Filartiga, 630 F.2d 876 (alleging
torture by Paraguayan officials); Xuncax v. Gramajo, 886 F.Supp.
162 (D.Mass.1995) (alleging abuses by Guatemalan military forces).
These suits produced several important decisions interpreting the
meaning and scope of the 1789 Act. For example, in [Filartiga v. Pena-Irala],
this court held that deliberate torture perpetrated under the color
of official authority violates universally accepted norms of international
human rights law, and that such a violation of international law constitutes
a violation of the domestic law of the United States, giving rise
to a claim under the ATCA whenever the perpetrator is properly served
within the borders of the United States. More recently, we held in
[Kadic v. Karadzic], that the ATCA reaches the conduct of private
parties provided that their conduct is undertaken under the color
of state authority or violates a norm of international law that is
recognized as extending to the conduct of private parties.
In passing the Torture Victim Prevention Act {TVPA], Congress expressly
ratified our holding in Filartiga that the United States courts have
jurisdiction over suits by aliens alleging torture under color of
law of a foreign nation, and carried it significantly further. While
the 1789 Act expressed itself in terms of a grant of jurisdiction
to the district courts, the 1991 Act (a) makes clear that it creates
liability under U.S. law where under "color of law, of any foreign
nation" an individual is subject to torture or "extra judicial
killing," and
(b) extends its remedy not only to aliens but to any "individual,"
thus covering citizens of the United States as well. [ ] The TVPA
thus recognizes explicitly what was perhaps implicit in the Act of
1789-- that the law of nations is incorporated into the law of the
United States and that a violation of the international law of human
rights is (at least with regard to torture) ipso facto a violation
of U.S. domestic law. [ ]
Whatever may have been the case prior to passage of the TVPA, we believe
plaintiffs make a strong argument in contending that the present law,
in addition to merely permitting U.S. District Courts to entertain
suits alleging violation of the law of nations, expresses a policy
favoring receptivity by our courts to such suits. Two changes of statutory
wording seem to indicate such an intention. First is the change from
addressing the courts' "jurisdiction" to addressing substantive
rights; second is the change from the ATCA's description of the claim
as one for "tort ... committed in violation of the law of nations
..." to the new Act's assertion of the substantive right to damages
under U.S. law. This evolution of statutory language seems to represent
a more direct recognition that the interests of the United States
are involved in the eradication of torture committed under color of
law in foreign nations.
. . .
One of the difficulties that confront victims of torture under color
of a nation's law is the enormous difficulty of bringing suits to
vindicate such abuses. Most likely, the victims cannot sue in the
place where the torture occurred. Indeed, in many instances, the victim
would be endangered merely by returning to that place. It is not easy
to bring such suits in the courts of another nation. Courts are often
inhospitable. Such suits are generally time consuming, burdensome,
and difficult to administer. In addition, because they assert outrageous
conduct on the part of another nation, such suits may embarrass the
government of the nation in whose courts they are brought. Finally,
because characteristically neither the plaintiffs nor the defendants
are ostensibly either protected or governed by the domestic law of
the forum nation, courts often regard such suits as "not our
business."
The new formulations of the Torture Victim Protection Act convey the
message that torture committed under color of law of a foreign nation
in violation of international law is "our business," as
such conduct not only violates the standards of international law
but also as a consequence violates our domestic law. In the legislative
history of the TVPA, Congress noted that universal condemnation of
human rights abuses "provide[s] scant comfort" to the numerous
victims of gross violations if they are without a forum to remedy
the wrong. [ ] This passage supports plaintiffs' contention that in
passing the Torture Victim Prevention Act, Congress has expressed
a policy of U.S. law favoring the adjudication of such suits in U.S.
courts. If in cases of torture in violation of international law our
courts exercise their jurisdiction conferred by the 1789 Act only
for as long as it takes to dismiss the case for forum non conveniens,
we will have done little to enforce the standards of the law of nations.
This is not to suggest that the TVPA has nullified, or even significantly
diminished, the doctrine of forum non conveniens. The statute has,
however, communicated a policy that such suits should not be facilely
dismissed on the assumption that the ostensibly foreign controversy
is not our business. The TVPA in our view expresses a policy favoring
our courts' exercise of the jurisdiction conferred by the ATCA in
cases of torture unless the defendant has fully met the burden of
showing that the [ ] factors "tilt [ ] strongly in favor of trial
in the foreign forum." [ ]
The court held that defendants' showing was inadequate and rejected
the defense of forum non conveniens.
|
| |
|