A blow to the angels

I wish I didn't have to write this post.

In the past few weeks, the ability to hold corporations accountable for gross human rights violations has been severely restricted.  Corporate impunity is winning.  And for those of us fighting for human rights, well, we are weighing our options, looking at the battlefield, and trying to plan our next attack.  But right now, we're in retreat. 

In 1789, yes, the year (history!), a one sentence statute that is now referred to as the Alien Tort Claims Act or the Alien Tort Statute, the ATS, became law.  The ATS was passed originally because a French diplomat in Philadelphia was pushed and fell into the mud and he wanted to be able to sue the dude who shoved him for damage to his outfit, or his dignity, or whatever (insert a French joke here, I know)(make it a nice one, I am fond of the French).  The United States, a fledgling nation, was embarassed that it could not address the needs of diplomats sent here from other countries, and in the Judiciary Act of 1789,  the First Congress passed the ATS, 28 U.S.C. § 1350, to prove that we, too, could sit at the big kid's table:

"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."

It's a teeny thing, that law, right?  I mean, what is it really saying?  Not much.  That a non-U.S. citizen can sue, well, ANYONE (the statute doesn't limits the defendants) for a violation of the law of nations, which is a fancy schmancy way of saying international law.  And the alien can sue for a tort, meaning they can claim monetary damages for a harm done.  The end.  That's it.  The ATS has no peer in any statute of any other country - the U.S. alone has such a chimerical law.  And I say chimerical, because for two hundred years, it was a squatter in the U.S. Code.  The statute sat around idly, taking up space, until it was revived as a tool to address violations of international human rights law in 1980, in Filartiga v. Pena-Irala.

Filartiga was a watershed moment for international human rights lawyering in the United States.  A father and his daughter, Paraguayan nationals who had moved to the United States, sued the former Inspector General of Police, who was also in the United States at the time, for the torture and execution of their son and brother, Joelito Filartiga, while all involved were still living in Paraguay.  The Second Circuit said, essentially, look: torture is a violation of the law of nations.  All nations abhor it - and torturers are the enemies of all humankind.  There is a violation of the law of nations here, and these folks are aliens.  Done.  And at trial, where the Filartiga family could finally confront Pena-Irala, justice was done - they were awarded $10 million dollars by the jury under the ATS.

After this, a tidal wave of cases brought under the ATS began to be filed in U.S. courts for all manner of gross human rights violations that occurred around the globe (I'll let Dolly Filartiga tell you more).  The Supreme Court itself tackled the ATS in Sosa v. Alvarez-Machain; it endorsed the Filartiga line of cases, holding that the ATS conveys jurisdiction on the courts to take the case, but the subject matter of the tort, the violation, had to come from customary international law.  The violation under international law must be one that is endorsed by the civilized world and defined with the specificity of those crimes that were considered violations of international law at the time the ATS was passed (meaning: slavery, safe conduct, and protection of ambassadors).

Now, international law doesn't happen overnight.  There is no moment when an international law is passed.  A court must look to treaties, the widespread practice of nations out of a sense of legal obligation, the writings of jurists, the resolutions of intergovernmental bodies (like the UN) - all of these pieces of evidence have to be accumulated, and then the norm appears.  The Supreme Court made it clear that international law evolves - after all, torture was not a violation of international law a the time the ATS was passed.  I mean, hey - remember the French Revolution?  But now, the world recognizes under international law those most horrid of crimes: torture, obviously, but also genocide, extrajudicial killing, war crimes, apartheid, nonconsensual human experimentation, mass rape as a weapon during armed conflict.  At first, ATS cases were filed against individuals who had violated international human rights norms, but lawyers began bringing cases against corporations who had made murder or genocide of innocent people a part of their business plan, all to turn a profit.  There was (and is - some of these are still ongoing) Unocal, Rio Tinto, Pfizer, Coca-Cola, Dutch Shell, Adhikari, Khulumani.  Many more are in various stages of litigation or appeal.

The ATS is a last ditch effort for most of these plaintiffs who have suffered abuses by corporations.  No other country holds corporations civilly liable for, specifically, a violation of the laws of nations, or will hold a corporation liable for what occurs outside its national borders (however, ALL nations hold corporations liable for their torts, even if those human rights claims are brought under other claims and other names).  The plaintiffs usually cannot bring suit in their own countries because the corporation is working with the government, or it means they will put themselves in danger, or the court system is corrupt or ineffective (some of these cases come from Burma, Nigeria, Sudan, or Somalia).  Corporations are almost impossible to hold criminally liable, because, I mean: you need intent to be found guilty of a criminal act.  How can a legal fiction have an intent?  And then how can you throw it in jail?   And so the ATS is the last chance for those who have been among the most oppressed and abused on the planet to seek justice and reparation.  That one sentence statute was all that was standing in the way of corporate impunity.

And it looks like it may not even be able to do that anymore.

The first blow was the Kiobel decision out of the Second Circuit, holding that corporations can NEVER be held liable for their human rights violations.  This decision means a couple of super scary things: 1. If you want to commit human rights violations, just incorporate!  Total immunity!  Now go off and commit genocide!  2. Corporations now have greater immunity than nations against lawsuits;  3. We can try to go after the individuals who ordered the human rights violation, like CEO's, but that's extremely hard evidence to get a hold of with the specificity of detail required to keep the court from dismissing it, and anyway: the corporation that makes violating human rights norms a business plan gets to keep the profits of its illegal actions;  4. In the current world we live in, where corporations have more and more rights and are taking on more and more activities that used to be reserved for states, this is a scary proposition.  I mean, FUCK, after Citizens United, corporations have free speech rights in this country, but they cannot be held liable for KILLING OFF AN ENTIRE VILLAGE OF INDIGENOUS PEOPLE so they can build a pipeline and make more money.

THIS IS THE WORLD WE LIVE IN.

The second blow was the Supreme Court refusing to hear the Talisman case, which ALSO came out of the Second Circuit and, strangely, was argued the same day as Kiobel but came out totally differently (Second Circuit, WHAT).  Talisman held that in order for a corporation to be held liable, plaitiffs have to prove the corporation had the intent to commit the human rights violations.  Now, wait a minute, you might be saying.  Isn't that why we don't hold corporations criminally liable?  Because we can't prove they had the intent to commit the crime?  And you would be savvy if you thought that, and you would be SMARTER THAN THE SECOND CIRCUIT.  Again, how the hell to you prove a fiction had the purpose to commit a crime?  You can't.  And so Talisman was appealed, because essentially, if that's the standard plaintiffs have to meet to file a civil claim against a corporation, you might as well not bother.  It's impossible.  Many of us hoped that Talisman would be accepted by the Supreme Court so we could hear once and for all corporations could be held liable (we think we had the justices for this), and maybe get a better standard of liability, one that is not impossible to meet.*

If you are wondering where I come in, I am no impartial observer.  I am currently part of a team litigating a human trafficking with an ATS claim in it.  I worked on the briefs for the cert. petition asking the Supreme Court to take Talisman this summer.  I am currently working on the briefs petitioning for a rehearing of Kiobel in the Second Circuit; if Kiobel stands, not only does that mean NO corporate ATS cases can be brought in the Second Circuit anymore, but the belief that corporations should never be held liable will spread like a virus to the other circuits, and then corporate impunity will be complete.**  I don't want to be a lawyer in that world, because I've always wanted to litigate international human rights, and corporations are the biggest offenders; but I just also don't want to be a person in that world.   I don't want to imagine a future with complete corporate impunity.

That's where we stand.  The Second Circuit rarely rehears cases, but Kiobel, having split the circuit, might (MIGHT) have a chance for an en banc hearing - and that's where the fight will move if it's accepted (although we can't fix the shitty precedent in Talisman).  And if it's not, well . . . we can try to keep corporate impunity from spreading.  Right now, only the Eleventh Circuit has ruled decisively that corporations can be held (although, of course, that could change).  Rio Tinto was just heard en banc in the Ninth Circuit, and the question about corporate liability was raised at oral argument - we'll see how that one comes down.  Or we can look for other places to move the fight.  We're going to have to move the fight.  There's already discussion about how to do this.  But no one's quite sure which way to go next.

The angels are down, guys.  We are.  But we're still going to fight.  We're just regrouping right now.  And fuck, we have justice on our side; you'd always hope that would be enough.  Maybe someday it will be.



* Folks thought it extremely likely SCOTUS would take Talisman, but here's the wrinkle no one expected - Sotomayor recused herself from deciding on cert.  No one is sure why - perhaps because the case came out of the Second Circuit, where she used to be on the bench?  Anyway, if the liberals weren't sure they could win that one with only 8 justices on the bench, they may have voted against taking Talisman, as it could have split the court, or created some very bad precedent.

** There has been a concerted push recently by corporations to get these cases thrown out, and it seems like they're starting to see the money they're throwing at "experts" to argue for them is paying off - a district court in California has now also held that corporations can never be held liable for violations of human rights norms.