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The Impact of the War Crimes Tribunals on Corporate Liability for Atrocity Crimes under US Law

David Scheffer

in Corporate Social Responsibility?: Human Rights in the New Global Economy

Federal courts resort to the jurisprudence of the international war crimes tribunals to interpret and enforce the Alien Tort Statute (ATS) against individuals and corporations. This practice ... More

Federal courts resort to the jurisprudence of the international war crimes tribunals to interpret and enforce the Alien Tort Statute (ATS) against individuals and corporations. This practice challenges skepticism of foreign sources of law as federal judges invoke tribunal rulings to define atrocity crimes in ATS litigation, understand aiding and abetting principles, and determine corporate liability under the ATS. The long history of the tribunals embracing elements of substantiality and knowledge in their determination of aiding and abetting should prevail over one countervailing tribunal appeals judgment. Although the Supreme Court restrained ATS liability for corporations under the presumption against extraterritoriality, corporate liability remains enforceable, as does aiding and abetting liability shaped by customary international law. The author posits that corporate executives may become more likely targets under the ATS and suggests that the crime of aggression, once activated before the International Criminal Court, may trigger more scrutiny of corporations under the ATS.Less

Alien Tort Statute Litigation

Curtis A. Bradley

in International Law in the U.S. Legal System

This chapter considers litigation under the Alien Tort Statute, which provides for jurisdiction over suits brought by aliens for torts in violation of international law. The chapter begins by ... More

This chapter considers litigation under the Alien Tort Statute, which provides for jurisdiction over suits brought by aliens for torts in violation of international law. The chapter begins by exploring Congress’s likely intent in enacting the Statute in 1789, and how the Statute may have related to Article III of the Constitution. The chapter then describes how the Statute received little attention until the Filartiga decision in 1980, which allowed for it to be used by aliens to sue other aliens for human rights abuses committed abroad. The chapter proceeds to explore a variety of doctrinal issues relating to this human rights litigation, including the source of the cause of action, the standards for bringing a claim, and the ability to sue corporations. The chapter then discusses the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, in which the Court substantially curtailed the territorial reach of claims that could be brought under the Statute.Less

Corporations and Human Rights

ANDREW CLAPHAM

in Human Rights Obligations of Non-State Actors

This chapter discusses various regimes that seek to cover the human rights obligations of corporations: the OECD Guidelines, the ILO Tripartite Declaration, the UN Global Compact, the Norms of the ... More

This chapter discusses various regimes that seek to cover the human rights obligations of corporations: the OECD Guidelines, the ILO Tripartite Declaration, the UN Global Compact, the Norms of the Sub-Commission, and the regime of international law in general. It examines in detail the Alien Tort Statute in the United States as it has been applied to corporations.Less

Meandering Jurisprudence and Unanticipated Legacies: The ICTY’s Reach into Domestic Civil Litigation

Mark Drumbl

in Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a ... More

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a new corner by examining the ICTY’s unexpected footprints in domestic civil litigation, specifically private tort claims brought in the US under the Alien Tort Statute (ATS, or Alien Tort Claims Act). Incorporation of international (including ICTY) materials in US ATS litigation remains a contested matter in which individual judges (both trial judges and appellate judges) demonstrate idiosyncratic behaviour. Some are ‘international law ignorers’, some are ‘international law enforcers’, some are ‘international law translators’, and some are ‘international law creators’. On this note, the ICTY’s legacy also touches upon broader questions of public international law and transnational legal migrations.Less

International Law in Domestic Courts: ATS Litigation and Climate Change

in The Perils of Global Legalism

For global legalists, the ideal dispute-resolution mechanism for international law violations is the international tribunal; but in practice, the most exciting international litigation is taking ... More

For global legalists, the ideal dispute-resolution mechanism for international law violations is the international tribunal; but in practice, the most exciting international litigation is taking place in U.S. domestic courts. This paradox reflects the basic tensions of global legalism: law without government exists at the international level, law normally requires courts to interpret and enforce it, effective courts cannot exist without supporting government institutions, no such institutions exist at the international level. In the absence of effective international courts, the next best thing is the domestic court, which can at least apply the law and enforce it—and maybe advance it. Alien Tort Statute litigation embodies the paradoxes of global legalism. This chapter explores the legalistic response to the most challenging global problem of our time: climate change. It discusses the different categories of domestic litigation in the United States, including nuisance and environmental litigation, and considers litigation in international courts.Less

American Courts, Global Norms

Martin S. Flaherty

in Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years ... More

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years have witnessed high-profile conflicts over international human rights law. One major battle involves whether, when, and how U.S. courts should recognize rights set out in the nation's treaty obligations. Another heated area of contention has arisen under an act of Congress, the Alien Tort Statute. Perhaps most heated of all have been debates over the use of foreign legal materials, including customary international law, to interpret the Constitution of the United States. In these areas as well, the Supreme Court, and the judiciary generally, has wavered. Yet once more, a fresh appreciation of the principles the Founders entrenched, the subsequent custom that on balance confirms that original vision, and the consequences of the way nations interact in a globalized age—all these imperatives point away from the path that the judiciary appears more and more to be considering, and back to the course first established.Less

“In Violation of the Law of Nations”: The Romero Assassination Comes to the United States

Matt Eisenbrandt

in Assassination of a Saint: The Plot to Murder Óscar Romero and the Quest to Bring His Killers to Justice

In 2001, a man working with the Center for Justice & Accountability (CJA) saw Alvaro Saravia in a lawyer’s office in San Francisco, California, and recognized him as one of Romero’s killers. CJA ... More

In 2001, a man working with the Center for Justice & Accountability (CJA) saw Alvaro Saravia in a lawyer’s office in San Francisco, California, and recognized him as one of Romero’s killers. CJA plays a role in the international justice movement that seeks to hold accountable those who commit atrocities, and CJA has a focus on bring U.S. cases under the Alien Tort Statute. This chapter describes the history of U.S. litigation using the Alien Tort Statute and the rise of CJA as an important human rights organization with a specific focus on cases involving El Salvador. The chapter concludes with CJA’s trip to search for Saravia near his home in Modesto, California.Less

Offshoring Experiments, Outsourcing Public Health: Corporate Accountability and State Responsibility for Violating the International Prohibition on Nonconsensual Human Experimentation

Bethany Spielman

in The Globalization of Health Care: Legal and Ethical Issues

This chapter uses the Kano, Nigeria, pediatric trials of the oral antibiotic Trovan and the litigation it produced to explore the remedies available to individuals suing U.S.-based multinational ... More

This chapter uses the Kano, Nigeria, pediatric trials of the oral antibiotic Trovan and the litigation it produced to explore the remedies available to individuals suing U.S.-based multinational corporations and the foreign states that host their clinical drug trials. It concentrates on litigation under the Alien Tort Statute (ATS). In 2001 families of children with bacterial meningitis filed lawsuits against Pfizer in the United States under ATS for violating a norm of customary international law prohibiting nonconsensual medical experimentation. The allegation of nonconsensual medical experimentation on human subjects had stated a claim under the ATS for a violation of the law of nations. Litigation under the ATS may continue to be the only path through which pharmaceutical corporations will be held accountable for nonconsensual experimentation. It is noted that these corporations will continue outsourcing some experiments from the United States to relatively poor nations.Less

Sanction and Socialize: Military Command Responsibility and Corporate Accountability for Atrocities

Scott A. Gilmore

in Corporate Social Responsibility?: Human Rights in the New Global Economy

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the ... More

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the human rights impact of war and business are similar projects. Both graft humanitarian concerns onto hierarchical organizations whose missions seem contrary to human rights. But the laws of war offer a regulatory model: the doctrine of command responsibility. This regime fuses sanctions with socialization. It requires commanders to instill cultures of compliance, and it penalizes them for failing to prevent or punish human rights abuses committed by their subordinates. This Chapter argues that the CSR project should embrace corporate command responsibility to incentivize industry self-regulation.Less

Tortured Prosecutions: Holding Private Military Contractors Accountable

Garrett Ordower

in Confronting Torture: Essays on the Ethics, Legality, History, and Psychology of Torture Today

This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but ... More

This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but little ability to hold them accountable. Exemplifying this is the difficulty that the U.S. faced in prosecuting Blackwater employees for their massacre of Iraqi civilians in Nisour Square in the course of providing security services for the U.S. State Department. Due to the lack of extraterritorial jurisdiction over the activities of many such contractors, the laws that apply to military personnel, such as the UCMJ and the MEJA, do not provide grounds for criminal or civil actions against contractors in many actual and possible circumstances. This chapter reviews the possibilities for using MEJA, SMTJ, ATS, UCMJ, the Anti-torture Statute, and foreign law against rogue or criminal contractors, and finds holes in the scope of each for securing justice. The chapter goes on to consider some recent proposals, such as the Civil Extraterritorial Jurisdiction Statute (CEJA) and extensions to existing law, to plug the gaps that make it difficult to prosecute or sue contractors for acts such as torture.Less

Conflicts between Federal Law and Foreign Law

Symeon C. Symeonides

in Choice of Law

This chapter discusses how American courts resolve conflicts between U.S. federal law and foreign law. After surveying federal statutes that are expressly applicable to foreign events or persons, the ... More

This chapter discusses how American courts resolve conflicts between U.S. federal law and foreign law. After surveying federal statutes that are expressly applicable to foreign events or persons, the discussion moves to the canons of construction developed by the United States Supreme Court for statutes that are silent or ambiguous on their extraterritorial reach. These canons include the presumption against extraterritoriality, the presumption of intended compliance with international law (Charming Betsy), the conduct test, and the effects doctrine. The discussion includes representative cases involving the Alien Tort Statute, the Securities Exchange Act, the Sherman Antitrust Act, and the Jones Act.Less

Civil Suits: The Utility of State Responsibility and the Law of Tort

Beth Van Schaack

Michael N. Schmitt, Shane R. Reeves, Winston S. Williams, and Sasha Radin (eds)

in Imagining Justice for Syria

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities ... More

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities and options for exercising jurisdiction over the sovereign state of Syria. Because there is no notion of state criminality under international law, only civil claims seeking money damages can be advanced against sovereign states. Jurisdiction over Syria exists before the International Court of Justice (ICJ) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; however, so far no state has been willing to take Syria to task before the ICJ. And so, victims must bear this burden. In this regard, some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over certain international law violations in certain circumstances. This chapter features a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act, which resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The chapter observes that although civil remedies are no substitute for vigorous criminal liability, these suits do extend victims some dignitary benefits that may not accrue with participation in a criminal process, even as a partie civile, including the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so.Less

The Corporation as an Atrocity Contributor

Michael J. Kelly and Luis Moreno-Ocampo

in Prosecuting Corporations for Genocide

This chapter provides historical context for understanding the legal treatment of companies that commit wrongdoing. Section I traces the experience of two early joint ventures—the Dutch East India ... More

This chapter provides historical context for understanding the legal treatment of companies that commit wrongdoing. Section I traces the experience of two early joint ventures—the Dutch East India Company and the British East India Company, which were founded to establish colonial economic units, create new trade routes, and secure monopolies on key commodities. The brutality with which both companies pursued these objectives led to human rights abuses, slavery, and ultimately genocide. Section II discusses the role of corporations in the context of wartime in the early twentieth Century. In both world wars, companies were major players furthering the efforts of their home states. But the German corporations displayed a much more egregious callousness toward humanity than companies in other belligerent states. Developing poison gas for battlefield use in World War I, and deploying gas to the extermination camps and openly using slave labor in World War II, sets German companies apart from the rest generally and the I.G. Farben firm in particular. Section III provides an update on civil liability within the United States of foreign corporations engaged in tortious conduct abroad.Less