October 2011 – dwkcommentaries

U.N. General Assembly Again Condemns U.S. Embargo of Cuba

On October 25, 2011, the United Nations General Assembly debated a resolution: “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba.” It passed, 186 to 2 with 3 abstentions. Only Israel joined the U.S. in opposition while three small Pacific island nations – Palau, Marshall Islands, and Micronesia – abstained.[1]

During the debate, the Cuban Foreign Minister Bruno Rodriguez said that the sanctions have caused direct economic damages of close to $1 trillion to the Cuban people over nearly half a century. In response, the U.S. Senior Area Adviser for Western Hemisphere Affairs, Ronald D. Godard, said the embargo is a bilateral issue and “not appropriately a concern of this assembly.” Godard added that the sanctions represent “just one aspect of U.S. policy toward Cuba, whose overarching goal is to encourage a more open environment in Cuba and increased respect for human rights and fundamental freedoms.”

Before this year’s vote the U.N. Secretary-General, pursuant to a provision of last year’s resolution on the subject, invited U.N. members and agencies to comment on the embargo for a report by the Secretary-General. [2] Of the 193 U.N. Members, 142 (of 73.6%) responded, all criticizing the embargo as did the 20 U.N. agencies that replied; the U.S. and Israel did not comment. [3] Here are some of the strongest statements on the subject:

Australia. “Since 1996, the Government of Australia has consistently supported General Assembly resolutions calling for an end to the trade embargo against Cuba. Australia has no trade or economic legislation or measures which restricts or discourages trade or investment to or from Cuba.”
Brazil. “The Brazilian Government has consistently opposed the economic, commercial and financial embargo imposed against Cuba. Accordingly, Brazil has also continued to foster and pursue a growing economic relationship with Cuba. . . . The maintenance of the economic, commercial and financial embargo against Cuba is inconsistent with the dynamic regional policy that has recently been marked by the return of Cuba to dialogue and cooperation forums of the Americas.”
China. “This [embargo] is not only a serious violation of the purposes and principles of the Charter of the United Nations and of relevant United Nations resolutions, but also a source of immense economic and financial losses for Cuba. It is an impediment to efforts by the Cuban people to eradicate poverty, to promote their economic and social development and to attain the Millennium Development Goals, it impairs the Cuban people’s right to survival and development, and it adversely affects normal economic, commercial and financial relations between Cuba and other countries.”
European Union. “…the European Union and its member States have been clearly expressing their opposition to the extraterritorial extension of the United States embargo, such as that contained in the Cuban Democracy Act of 1992 and the Helms-Burton Act of 1996.”
Holy See. “The Holy See has never drawn up or applied economic, commercial or financial laws or measures against Cuba.”
Japan. “Japan shares the concern, arising from the . . . (the Helms-Burton Act) and the Cuban Democracy Act of 1992, that, if application of such legislation causes undue hardship in relation to the economic activities of the enterprises or nationals of a third party, the legislation is likely to run counter to international law regarding the extraterritorial application of domestic laws.”
Mexico. “Mexico emphasizes that [the embargo] has serious humanitarian consequences that are contrary to international law and, moreover, signify the abandonment of diplomacy and dialogue as the appropriate ways of settling disputes between States. . . . The Government of Mexico has also consistently opposed Cuba’s economic and political-diplomatic isolation. It has therefore firmly supported Cuba’s inclusion in all regional integration machinery in order to promote economic and commercial exchange, cooperation and development.”

This is the twentieth straight year the General Assembly overwhelmingly has adopted a resolution condemning the U.S. embargo. In 2010, for example, a resolution that called upon the U.S. to repeal the embargo was approved by 187-2, again with only Israel joining the U.S. in opposition and the same three Pacific island nations abstaining.

Here are some of the reasons why the U.S. should end the embargo:

The embargo undermines U.S. foreign policy interests. It undermines the empowerment of Cuban citizens, harming them economically and depriving them of choices that could emerge from greater U.S. engagement with Cuba. (Steve Clemons, Washington Editor-at-Large, The Atlantic and Senior Fellow & Founder, American Strategy Program, New America Foundation.)
The embargo hurts U.S. national security interests . It prevents normal trade and travel between our two countries. It prevents cooperation with Cuba on common security issues such as crime and terrorism. It hurts U.S. standing throughout the world by highlighting our aggression against a neighboring country that poses no threat. (John Adams, Brigadier General US Army (Retired).)
The Cuba embargo runs counter to our experiences with China and Viet Nam. Both countries have Communist systems, and we fought a war with Viet Nam. Yet we trade with both. (John R. Block, Secretary of Agriculture under President Ronald Reagan and officer with Olsson Frank Weeda Terman Bode Matz PC0.)
The embargo isolates the U.S. government and cuts off contact between Cubans and Americans . The embargo isolates and weakens U.S. policy makers and U.S. policies at a time of increasing integration between Latin America and the Caribbean and the global south. U.S. citizens are denied ready access to highly praised Cuban achievements in the arts and culture, education, medical and technological advances, and deprived of sustained engagements with Cuban citizens and the Cuban government to share our national virtues. (James Early,Trustee, Institute for Policy Studies, and Director of Cultural Heritage Policy, Smithsonian Center for Folklife and Cultural Heritage.)
The embargo undermines the image of the United States throughout the world. The embargo is senseless and irredeemable. It is the act of a bully, based on pique. It is an abysmal moral and political failure, diminishing not Cuba but the U.S. in world opinion and respect. It has achieved the opposite of what it has sought, hurting both the Cuban people as well as U.S. interests. The embargo is opposed by virtually the entire world as well as large domestic majorities, even Cuban exiles and dissidents; yet, the U.S. government persists with its petty punitive policy, not out of reasoned principle but for internal political posturing. (Rubén G. Rumbaut, ENCASA/US-CUBA, University of California, Irvine.)
The embargo imposes great suffering on Cubans . The embargo continues to inflict gratuitous and pointless suffering on the Cuban people. Children dying from cancer are denied access to potentially life-saving drugs, heart patients cannot get U.S. manufactured pace-makers, and Cuba’s cutting-edge biotechnology institutes that provide important drugs at an affordable price to the rest of the world are denied the U.S. substrates they need. (Peter Bourne, Chairman of the Board, Medical Education Cooperation with Cuba (MEDICC).)
The embargo hobbles our ability to protect the environment . Oil drilling in Cuban waters creates an unprecedented urgency to rethink U.S. policy toward Cuba. An oil spill in Cuba could be disastrous to shorelines, marine life, coastal communities and livelihoods in both countries. The U.S. should eliminate political and legal obstacles that hinder its ability to share expertise if an emergency occurs in shared waters. The Obama Administration has taken some positive steps to promote scientific exchange and dialogue on environmental protection with Cuba. Environmental diplomacy-done right and carried out in good faith-can lay a foundation for real and lasting improvement in Cuba-U.S. relations. (Daniel Whittle, Senior Attorney and Cuba Program Director, Environmental Defense Fund.)
The embargo is not about principle; it’s about politics . The embargo is an international embarrassment to a country that continues to claim leadership in the realm of human rights. An unnecessary and sickening relic of the Cold War, the embargo has become a political football proving that elections – and electoral votes – mean more to American politicians than fairness, justice, the human needs of the Cuban people or the lives, health and education of Cuban children. (Mike Farrell, Actor and human rights advocate.)
Ending the embargo would be doing the right thing. It is time for President Obama and Congress to do the right thing, cast off the failed embargo of Cuba, and embrace a policy of engagement that will provide economic opportunities for U.S. farmers and businesses as well the workers they employ. Doing the right thing will improve economic conditions in both the U.S. and Cuba and will also over time contribute to greater social stability in the Caribbean region. (Cal Dooley, President and CEO, American Chemistry Council.)
10. Ending the embargo is long overdue . Lifting the U.S. embargo against Cuba is long overdue. (Katrin Hansing, Associate Professor of Black and Hispanic Studies at Baruch College (CUNY).)

[1] Assoc. Press, UN Condemns US Embargo of Cuba–Again, N.Y. Times (Oct. 25, 2011); Latin America Working Group, UN Cuba Vote–Happy 20th Anniversary (Oct. 25, 2011); CubaCentral Newsblast (Oct. 21, 2011). See also Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011); Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011); Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots for Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011); Comment: Obama and Romney Out of Touch on Cuba Oct. 15, 2011); Post: U.S. and Cuba Discuss Exchange of Prisoners (Oct. 14, 2011); Comment: Cuban-Americans in Congress Criticize U.S. Willingness To Discuss Issues with Cuba (Oct. 15, 2011).

[2] U.N. Gen. Assembly Res. 65/6 (Nov. 23, 2010).

[3] Report of U.N. Secretary-General, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (Aug. 16, 2011).

International Criminal Court: Four People Recommended for Election as ICC Prosecutor

On October 25th the International Criminal Court (ICC) announced that the Search Committee for a new Prosecutor for the Court had recommended four individuals for this position.[1]

The four individuals are:

Fatou B. Bensonda. From Gambia, she has served as ICC Deputy Prosecutor since November 2004. Previously she held high-level positions as legal advisor and attorney for the International Criminal Tribunal for Rwanda (ICTR) and the government of Gambia.
Andrew T. Cayley. From the United Kingdom, he is currently a prosecutor for the Extraordinary Chambers in the Courts of Cambodia (ECCC). Previously he was a senior prosecuting counsel for the ICC, defense counsel for the Special Court for Serra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY), prosecuting counsel for the ICTY and an attorney with the British Army.
Mohamed Chande Othman. From Tanzania, he is currently Chief Justice of Tanzania. Previously he was Justice on the country’s Court of Appeal and held high-legal positions with the U.N. Development Program for Cambodia, the U.N. Transitional Administration in East Timor (UNTAET), the ICTR and the High-Level Commission of Inquiry on Lebanon.
Robert Petit. From Canada, he is currently Counsel to the Crimes Against Humanity and War Crimes Sections of Canada’s Department of Justice. Previously he served in high-legal legal positions with the ECCC, SCSL, UNTAET, ICTR and the Canadian Department of Justice.

Now the ICC’s Assembly of States Parties will endeavor to nominate and elect by consensus one of these people as the new ICC Prosecutor. That will happen at the Assembly’s meeting in December 2011.

[1] ICC Press Release, Report of the Search Committee for Prosecutor (Oct. 25, 2011). See Post: International Criminal Court: Its Upcoming Prosecutor Election (June 25, 2011).

The Alien Tort Statute, 1980-2004

For approximately the next 25 years after the Second Circuit’s decision in 1980 in the Filartiga case,[1] the lower federal courts throughout the country upheld at least 16 ATS lawsuits against foreign government officials for violations of international human rights norms.[2]

The Second Circuit itself held that the ATS was not limited to state actors and that certain acts violate the law of nations whether done by state officials or private individuals. Examples of conduct not requiring state action were genocide and certain war crimes. The court also held that de facto states could be liable for torture.[3]

Some ATS cases also were brought against foreign and U.S. corporations for allegedly aiding and abetting human rights violations.[4] One such case was a class action against Swiss banks to recover the bank accounts of Holocaust victims. After the trial court’s denial of the defendants’ dismissal motion, the banks settled the case for a payment of $1.25 billion. Another case was a class action against European insurance companies for failure to pay life insurance benefits for Holocaust victims because there were no proofs of death. This case also was settled with the companies establishing the International Commission for Holocaust-Era Claims that spent $55 million in administrative costs and paid out $35 million of claims.[5]

Three of the plaintiffs’ attorneys active in this field argue that the ATS cases contribute to a global struggle against impunity for human rights violators by:

“(1) helping to ensure that the United States does not remain a safe haven for such perpetrators,(2) holding individual perpetrators accountable for human rights abuses, (3) providing the victims with some sense of official acknowledgement and reparation, (4) contributing to the development of international human rights law, . . . (5) building a constituency in the United States that supports the application of international law in such cases and an awareness about human rights violations in countries in all regions of the world . . ., (6) [helping to] create a climate of deterrence and (7) [helping to] catalyze efforts in several countries to prosecute their own human rights violators.”[6]

During this 25-year period, the lower federal courts had no guidance from the U.S. Supreme Court on interpreting the ATS. That changed in 2004 with the Supreme Court’s decision in Sosa v. Alvarez-Machain[7] that will be discussed in a subsequent post.

[1] See Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); 28 U.S.C.§ 1350. During this period most cases and commentaries referred to the statute as the Alien Tort Claims Act or ATCA.

[2] E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 958-59, 962-63 (4^th ed. 2009)[“Weissbrodt”]; Coliver, Green & Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 174-86 (2005)[“Coliver”].

[3] Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Weissbrodt at 962-63.

[4] The viability of ATS cases against corporations is now an issue before the U.S. Supreme Court. (See Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[5] Weissbrodt at 962.

[6] Coliver at 174-86.

[7] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

The Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004

The Alien Tort Statute (ATS) was enacted by the Congress in 1789 and then virtually was unused through 1979. In 1980 that changed when the U.S. Court of Appeals for the Second Circuit decided that the ATS permitted a lawsuit for money damages by two Paraguayans against another Paraguayan for the torture and killing of a member of their family. For the next 25 years without guidance from the U.S. Supreme Court the lower federal courts upheld many similar cases under the ATS.[1]

In 2004 the Supreme Court finally entered the discussion.

David_Souter_1395666a — Justice David Souter

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the U.S. Supreme Court, 9-0, held that a single illegal detention of less than a day, followed by a transfer of custody to lawful authorities and a prompt arraignment did not violate any treaty or norm of customary international law, and, thus, the plaintiff did not have a valid claim for damages under the ATS.[2]

In reaching this holding, the Court, 9-0, in an opinion by Justice Souter, made the following conclusions regarding the ATS:

The ATS is a jurisdictional statute and does not create a cause of action (id. at 713-14, 729).
Torts in violation of the law of nations were recognized as being within the common law in 1789, when the ATS was adopted (id. at 714-15, 729).
Although it is difficult to be certain about congressional intent in adopting the ATS in 1789, Congress did not intend the ATS to be a dead letter until a future Congress or state legislature adopted a statute creating causes of action for torts against the law of nations and instead intended the ATS to be a jurisdictional basis for a “relatively modest set” of such causes of action (id. at 716-24).

The opinion for the Court, 6 to 3, went on to hold that customary international law was part of federal common law, that such international law constituted the customs and usages of civilized nations, as evidenced by the works of well qualified jurists and commentators, and that such international law to give rise to a cause of action for damages under the ATS must have the definite content and acceptance among civilized nations equivalent to the late 18^th century’s ban on piracy, infringements on the rights of ambassadors and violation of safe conducts. (Id. at 724-25, 731-32.)[3]

The Court also noted, 6-3, these reasons for “judicial caution” in creating or recognizing such claims in the common law: (1) the concept of common law had radically changed from 1789 to one acknowledging that such law is created or made; (2) common law (since Eire R. Co. v. Tompkins in 1938) is now generally a matter of state law, leaving federal common law to “havens of specialty;” (3) the Supreme Court recently and repeatedly has said that creation of private causes of action generally is better left to legislative judgment; (4) creation of common law causes of action for torts against the law of nations can affect foreign relations which is the responsibility of other branches of government; and (5) Congress has not specifically authorized or encouraged the courts to create such causes of action (id. at 725-30).

In this regard, the opinion, 6-3, said that the lower federal courts since 1980 generally had taken this approach to recognizing such causes of action. It cited the Second Circuit’s opinion in Filartigav. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that the torturer was like the pirate and slave trader (542 U.S. at 732).[4] The Court also suggested that what was sufficiently definite to be recognized as such a tort as a matter of common law could change over time, citing conflicting lower court opinions, separated by 11 years, on the issue of whether a private actor like a corporation or individual could be liable for such a tort (id. at 732, n.20). In addition, the Court suggested that exhaustion of domestic remedies and case-specific deference to the political branches could be additional limitations on creation or recognition of such torts. (Id. at 733, n.21).

In resolving the specific issue before them, the Court also evaluated the relevance of certain international human rights instruments. The Universal Declaration of Human Rights, the Court said, “does not of its own force impose obligations as a matter of international law” (id. at 734-35). The International Covenant on Civil and Political Rights, on the other hand, did impose obligations on the United States because of its ratification of same, but that ratification was “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts” (id. at 735). Indeed, the more general use of such understandings or declarations that certain treaties were not self-executing was recognized by the Court earlier in its opinion (id. at 728).[5]

[1] See Post: The U.S. Alien Tort Statute, 1789-1979 (Oct. 21, 2011); Post: U.S. Court of Appeals’ 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); Post: The U.S. Alien Tort Statute, 1980-2004 (Oct. 25, 2011).

[2] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Court also held, 9-0, that the United States Government was immune from liability on the plaintiff’s claim under the Federal Tort Claims Act (id. at 699-712). Justice Ginsburg, concurring, reached the same result on different grounds (id. at 751-60).

[3] Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented on the issue of the federal courts’ ability to recognize or create new causes of action for such torts as a matter of federal common law (id. at 738-51.)

[4] See: Post: U.S. Court of Appeals’ 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011). The concurring opinion of Justice Breyer in Sosa suggested that torture, genocide, crimes against humanity and war crimes constituted matters that were appropriate for damages claims under international law as incorporated into federal common law. (Id. at 760-63.) Justice Breyer also suggested that recognition of such causes of action as a matter of federal common law was consistent with notions of international comity and that the concept of universal jurisdiction for criminal prosecutions was the way to take into account this comity consideration (id.).

[5] The Court did not consider any treaties that were not ratified by the U.S., but the opinion for the Court strongly suggests that they would not be given any weight.

U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable

The U.S. Alien Tort Statute (ATS) was originally enacted in 1789 and was virtually unused through 1979.[1] This changed in 1980 when the U.S. Court of Appeals for the Second Circuit in New York City decided a case, Filartiga v. Pena-Irala.[2]

The facts giving rise to the case arose in Paraguay in 1976. Dr. Joel Filartiga was well-known in his country as a physician, painter and opponent of his country’s dictator, General Alfredo Stroessner. In March of that year, Filartiga’s 17-year-old son Joelito was kidnapped, tortured and killed. In the middle of the night of the abduction, Joelito’s sister, Dolly, was forced out of the house to go view the mutilated body of her brother. All of these horrendous acts allegedly were committed by Americo Norberto Pena-Irala, who was a police official in the city where the Filartiga family lived.[3]

In 1978 Dolly Filartiga, who was living in New York City, learned that Pena-Irala also was in the City. With the assistance of the Center for Constitutional Rights[4] she commenced a civil lawsuit for money damages under the ATS in U.S. federal court on behalf of herself and her father against Pena-Irala. The complaint alleged that as a police inspector general in Paraguay he had kidnapped and tortured to death Joelito Filartiga in violation of international law.[5] The district court, however, dismissed the complaint for lack of subject-matter jurisdiction.

On appeal and at the request of the Second Circuit Court of Appeals, the Carter Administration’s Department of Justice advised the court that the universal and fundamental prohibition against torture protected individuals from their own governments, that enforcement of this norm in cases under the ATS would not undermine U.S. foreign policy interests and that failure to entertain such cases could undermine U.S. credibility regarding international human rights and our ability to influence states with poor human rights records.[6]

Later the Second Circuit reversed and remanded the case for further proceedings. The Second Circuit held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” As a result, the complaint had a proper basis for federal jurisdiction under the ATS.[7]

On remand, the defendant (Pena-Irala) took no further part in the case and thus defaulted. The district court then entered judgment against him and in favor of the father for $5,210,364 and in favor of the sister for $5,175,000.[8]

This case established many firsts. The ATS supports assertions of extraterritorial jurisdiction over events happening in other countries. International human rights norms are justiciable, i.e., they can be adjudicated by U.S. federal courts. The individual as victim and perpetrator is a proper subject of international law. A robust system of accountability for foreign human rights violations under the ATS is consistent with the national interest of the U.S.[9]

Thereafter for the next 25 years Filartiga was followed by other lower federal courts without any guidance from the U.S. Supreme Court, which will be the subject of another post.

[1] See Post: The Alien Tort Statute, 1789-1979 (Oct. 21, 2011).

[2] Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[3] Id.; Center for Constitutional Rights, Filartiga v. Pena-Irala,http:ccrjustice.org/ourcases/pastcases; Wikipedia, Filartiga v. Pena-Irala, http://en.eikipedia.org; William Aceves, The Anatomy of Torture: A Documentary History of Filartiga v. Pena-Irala (Brill; 2007); Richard Alan White, Breaking Silence: the Case That Changed the Face of Human Rights (Georgetown Univ. Press; Washington, D.C. 2004); HBO Docudrama, One Man’s War (1991).

[4] The Center for Constitutional Rights (CCR), which was founded in 1966 and based in New York city, is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.” (CCR, Mission and History, http://www.ccrjustice.org.)

[5] See n.3 supra.

[6] Schaack, Read On! The Definitive Filartiga, IntLawGrrls (June 27, 2008); Center for Constitutional Rights, Filartiga v. Pena-Irala,http:ccrjustice.org/ourcases/pastcases

[7] Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[8] Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y.1984). Twenty years later, the Filartigas had not collected anything on the judgment, but were still trying to do so. (Boustany, For a Sister, Court Fight Stirs Memories of Paraguay, Wash. Post (Apr. 2, 2004).

[9] Schaack, Read On! The Definitive Filartiga, IntLawGrrls (June 27, 2008).

The Alien Tort Statute, 1789-1979

We already have seen that the U.S. Supreme Court this Term will be considering whether a corporation may be held liable under the U.S. Alien Tort Statute (ATS) that provides for a district court’s having jurisdiction over a civil action for money damages “by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[1]

JudAct1789 — An Act to establish the Judicial Courts of the United States

The first version of the ATS was part of An Act to establish the Judicial Courts of the United States (also known as the Judiciary Act of 1789) that was adopted on September 14, 1789.[2] It was only the 20th statute ever adopted by Congress, and it established the federal courts. More specifically it established thirteen judicial districts (§ 2), the district courts (§ 3) and their jurisdiction (§ 9).[3] One of the jurisdictional provisions for the district courts, and the first version of the ATS, stated that the district courts “shall have cognizance, concurrent with the courts of the several States, or the circuit courts . . . of all cases where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

There are no committee reports or reported debates and thus no legislative history for this statute. Many law review articles and cases that discuss this 1789 statutory provision find it difficult to come to any conclusion as to what the legislative intent was.

To place the Judiciary Act of 1789 in historical context, recall that the U.S. Constitution went into effect on June 21, 1788, after the ratification by nine states. Article III, Section 1 of the Constitution provided that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

FederalHallNYC — Federal Hall, New York City

GWinaug — George Washington Inauguration

The First Session of the First Congress of the U.S. opened on March 4, 1789. It had 22 Senators representing the 11 states of the Union that had then ratified the Constitution and only 59 members of the House of Representatives. They met in the former City Hall of New York City at the corner of Wall and Broad Streets. The Supreme Court also met here, and the executive offices of the federal government were here too. On the balcony of that same building George Washington was inaugurated as the first President of the U.S. on April 30, 1789.[4] The population of New York City in 1789, by the way, was only 33,000 while the total U.S. population was 3.9 million.

For nearly the next 200 years, the ATS does not appear in any of the reported cases from our federal courts.[5]

In 1795, however, U.S. Attorney General William Bradford was asked whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone. Bradford was uncertain on that question, but he made it clear that a federal court was open for the civil prosecution of a tort action growing out of the episode. He said,”But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.”[6]

In any event, the lack of judicial precedent on the ATS changed in 1980 as we will see in a subsequent post.

[1] 28 U.S.C. § 1350; Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[2] An Act to establish the Judicial Courts of the United States, 1 U.S. Stat. 73 (1789).

[3] The Judiciary Act of 1789 also established the U.S. Supreme Court (§ 1) and three judicial circuits (§ 4) and contained other provisions relating to starting a new judicial system (id. §§ 5-8, 10-35).

[4] The site is kitty-corner today from the New York Stock Exchange and not too far from where the World Trade Center used to stand.

[5] In 1911 and again in 1948 the ATS was enacted into positive law with modest language changes as section 1350 of Title 28 of the U.S. Code. (An Act to codify, revise and amend the laws relating to the judiciary, 36 Stat. 1087, 1093 (§ 24 (17)) (1911); An Act to revise, codify and enact into law Title 28 of the United States Code entitled “Judicial Code and Judiciary,” 62 Stat. 869 (1948).

[6] 1 Op. [U.S.] Atty. Gen. 57, 59 (1795).

Annual Commemorations of Oscar Romero’s Life

Memory is important in all aspects of human life, especially when we consider religious and moral leaders and exemplars. Oscar Romero was such a man, and as we have seen, Oscar Romero is remembered in music, film, art and books.[1]

Perhaps the most important way he is remembered and honored, however, is the series of annual commemorations of his life on March 24th, the day he was assassinated in 1980. They happen in many places around the world.

Chapel2000 — Romero celebration @ Chapel, March 2000

In San Salvador, the commemorations are especially poignant. The central event is a gathering of people from all over the world at the chapel where he was killed and where a special memorial service is held. Then the people march through the city, passing a traffic circle appropriately called “El Salvador de Mundo” (the Savior of the World), before going on to the Cathedral where Romero is buried. There a worship service with music is held in the plaza in front of the Cathedral.

I went to the 20th anniversary commemoration in 2000 with a group from Minneapolis’ Center for Global Education (CGE) of Augsburg College.[2] In 2010 for the 30th anniversary I went with a group organized by a Salvadoran NGO, Centro de Intercambio y Solidaridad (CIS).[3]

Both institutions participated in the previously mentioned central event. They also visited the chapel where Romero was murdered, his apartment across the street and the Cathedral where he is buried. On both occasions we went to Universidad de Centro America (UCA) to see the Romero Chapel and the Monsenor Romero Pastoral Center with its museum of the civil war.

Romerobanner2000 — Romero banner, March 2000

ElSalbanner2010A — Romero banner, March 2010

ElSalbanner2010B — CIS Romero banner, March 2010

ElSalbanner2010C — German Romero banner, March 2010

ElSalmass — Mass @ El Salvador de Mundo, March 2000

They both also organize other activities, including meetings with local economists and political scientists to learn about the history and current conditions of El Salvador. Other common activities are concerts and trips outside the capitol to learn more about the country.

In 2000 we met with UCA’s Rector, Dean Brakeley, a U.S. citizen who came to El Salvador in January 1990 to take over the leadership of UCA two months after the murders of the previous Rector, Ignacio Ellacuria, and his five brother Jesuits. Brackley’s “deepening analysis of the plight of the poor would connect the dots between Medellin and the complex inequities built into trade agreements, global capitalism, immigration policy and the war on terror.” All of this analysis always was within the theological understanding that “God is with the poor, making them ambassadors to the rest of us, evangelists who invite us to save ourselves by responding to their plight.” Brackley taught theology at UCA, but he identified a special role for himself in educating U.S. and European visitors to El Salvador about the realities of poverty and oppression in that part of the world and the roles played by the U.S. in helping to maintain that situation. Brackley died of pancreatic cancer in El Salvador on October 16, 2011.[4]

In the 2000 trip we learned about the work of Equipo Maiz, the Salvadoran NGO. We saw a special art exhibit about Romero in Parque Cuscatlan.

Our 20th anniversary group traveled to Oscar Romero’s home town of Ciudad Barrios in the northeastern part of the country. There we saw the house where he was born, the town’s church and the Radio Romero studio. We even had one day of relaxation on a beach on the Pacific Ocean.

In 2010 we again visited the chapel where Romero was murdered, his apartment across the street and the Cathedral where he is buried. We went to the Presidential Theater to see a new documentary film, “Romero by Romero.” I was touched to see the portion of the film showing Romero walking around a poor area and warmly greeting and touching the people he met without a lot of ceremony.

We met in 2010 with the UCA Rector, Father Jose Maria Tojeira, S.J. He was an amazingly light-hearted man. He told us he was new to UCA in November 1989 and lived nearby, but not on the campus. During the night of November 18th he heard gunfire and thought there must have been a skirmish between the Salvadoran security forces and the guerrillas. The next morning he went to the campus, and was one of the first people to see the dead bodies of his six fellow Jesuits and their cook and her daughter. He nonchalantly said, “That morning I thought I was the next one to be killed.” Later that day he went to his office and found faxed messages of support and solidarity from people all over the world. Then in the same nonchalant manner, he said he thought, “Well, maybe I am not the next to be killed.”

CinqueraRomero — Romero mural & bomb shell, Cinquera

In 2010 we visited towns (San Isidro and Victoria) in the Department of Cabanas, where we learned about current controversies over gold mining and murders and death threats of people opposed to the mining. Another village (Cinquera) in the Department of Chalatenango on our itinerary was heavily damaged in the civil war, and a damaged helicopter sits on a pedestal in the town square.[5]

We were fortunate in 2010 to have in our group Dr. Marian Mollin, An Associate Professor of History at Virginia Tech University. She is working on a historical biography of Sister Ita Ford, who was one of the four American church women murdered in El Salvador in December 1980.[6] Professor Mollin shared her insights into Sister Ford and the other sisters on our visits to where the women were murdered and where they are buried; I will discuss these visits in a future post about the four church women.

We also had a meeting 2010 at the new and very large U.S. Embassy with U.S. officials. There we learned the current U.S. perspective on El Salvador. We asked them tough questions on the U.S. position about gold mining in the country and the current violence directed at anti-mining activists.

My 2000 trip with CGE was my second trip with them. I went to El Salvador for the first time in 1989 with CGE. My 2010 trip with CIS was also my second trip with them. My other trip was in 2003 to be an election observer.

I was not aware of Oscar Romero during his life. I give thanks to God for helping me to discover him starting in 1989. He was and is a truly inspiring, brave, wonderful human being, servant of God and Christian.

[1] Post: Remembering Oscar Romero in Music (Oct.14, 2011); Post: Remembering Oscar Romero in Film (Oct. 15, 2011); Post: Remembering Oscar Romero in Art (Oct. 16, 2001); Post, Remembering Oscar Romero in Books (Oct. 17, 2011).

[2] Center for Global Education, http://www.augsburg.edu/global. CGE also usually organizes November trips for the commemoration of the six Jesuits and December trips for honoring the four American church women.

[3] Centro de Intercambio y Solidaridad, http://www.cis-elsalvador.org. CIS also usually organizes November trips for the commemoration of the six Jesuits and December trips for honoring the four American church women. In addition, CIS has regular election observation missions, Spanish and English language courses and grassroots organizing activities.

[4] Dean Brackley on the 20th Anniversary of the Jesuit Martyrs of El Salvador, http://www.youtube.com/watch?v=lHywPAqj4Eo (Nov. 1, 2009); Mike, Dean Brackley returns to El Salvador, http://centralamericanpolitics.blogspot.com ( Sept. 24, 2011); Jesuit who replaced slain Salvadoran priests dies, Nat’l Catholic Reporter (Oct. 17, 2011).

[5] There is a new documentary film about the war in Cinquera that I have not yet seen. (Echeverria, A beautiful documentary about the war in El Salvador surprises in Biarritz [France], http://www.diariocolatino.com (Sept. 30, 2011)(Google English translation).)

[6] Virginia Tech Univ., Marian Mollin, Ph.D., http://www.history.vt.edu/Mollin.

Perryite Laments Misuse of His Hometown by Michelle Bachmann

I grew up in Perry, Iowa. I know Perry, Iowa.[1] And Michelle Bachmann is no Perryite.

Last week she chose my hometown to sign a pledge to construct a fence on the entire U.S.-Mexico border and to criticize Texas Governor Rick Perry’s immigration policies or actions. She said she chose to do this in this Iowa town because its population is now 32% Hispanic due to a meat-packing plant in the town and because it just happens to have the same name as her Republican rival.[2]

When I was growing up in the town in the 1950’s there were no Hispanics and very few black people. It was a very plain “white bread” place. But it was not a town of bigots. It has produced many people who now live in the town and many different parts of the U.S. and the rest of the world and who quietly contribute to making the world a better place.

Mrs. Bachmann, quit spreading your views in Perry, Iowa and elsewhere! I am happy your campaign fundraising is falling off. Soon, I hope, you will be forced to exit the national stage.

[1] Post: Growing Up in Small Town Iowa (Aug. 23, 2011).

[2] Glover, Michelle Bachmann Pledges Border Fence with Mexico, Blasts Rick Perry Over Immigration, www. huffingtonpost (Oct. 15, 2011)(dateline: Perry, Iowa); Gabriel, For Bachmann, a Bid to Reconnect in Iowa, N.Y. Times (Oct. 17, 2011)(dateline: Perry, Iowa).

Remembering Oscar Romero at Westminster Abbey

RomerostatueWestAbbey — Romero Statue, Westminster Abbey, London, UK

In 1998 Westminster Abbey in London opened its gallery of Christian Martyrs of the Twentieth Century. Their 10 statues are set in outside niches above the main entrance. The Abbey did so to proclaim that the 20th century was one of Christian martyrdom greater than in any previous period in the history of the church.[1]

In niche number 6 is the statue of Oscar Romero. He stands between the statues of Dr. Martin Luther King, Jr., the great U.S. civil rights leader and preacher, and Dietrich Bonhoeffer, the German Lutheran pastor and theologian who was executed by the Nazi regime just before the end of World War II for his involvement in a plot to assassinate Adolph Hitler.[2]

The biographical essay about Romero in a book about this gallery of martyrs is by Philip Berryman, an U.S. liberation theologian and leading authority on Christianity in Central and South America.

Berryman was in El Salvador in March 1980 and heard Romero’s famous homily ordering the military to stop the repression. Immediately afterwards, Berryman said he expressed his amazement at Romero’s boldness in saying what the Salvadoran military officers must have thought was treasonous. The next day when Berryman heard that Romero had been shot, he rushed to the hospital only to find out that Romero had died. Shortly after the assassination, he reports that Ignacio Ellacuria, the Rector of the Universidad de Centro America (UCA), celebrated a mass and said that with Archbishop Romero, God had visited El Salvador.[3]

Berryman recounts the familiar story about Romero’s being conservative and soft-spoken when he was appointed Archbishop in early 1977 and being converted to social and political justice after the murder of his friend, Father Rutilio Grande. To the same point, he quotes another friend of Romero, Jesuit priest and liberation theologian at UCA, Jon Sobrino, who said that when Romero gazed “at the mortal remains of Rutilio Grande, the scales fell from his eyes. Rutilio had been right! The kind of pastoral activity, the kind of church, the kind of faith he had advocated had been the right kind after all. . . . [I]f Rutilio had died as Jesus died, if he had shown that greatest of all love, the love required to lay down one’s very life for others–was this not because his life and mission had been like the life and mission of Jesus? . . . Ah then, it had not been Rutilio, but Oscar who had been mistaken! . . . And Archbishop Romero , , , [made] a decision to change.” In short, Grande’s life and death gave Romero a new direction for his life and the strength to pursue it.[4]

Romero, according to Berryman, prepared his homilies in consultation with a team of priests and lay people to review the situation in the country. Then he would write the homily from his notes, the newspapers of the week and the Biblical texts and commentaries. The homilies themselves usually lasted about 45 minutes, mostly devoted to a systematic and thematic reflection on the Biblical texts for the day, but also with Romero’s observations on the human rights violations of the prior week.[5]

Berryman also comments on the strained relationship between Romero and the U.S. government. Early in 1978, for example, Romero met with Terrance Todman, the U.S. Under-Secretary of State for Inter-American Affairs, who urged Romero to have a less confrontational and more constructive relationship with the Salvadoran government. Romero immediately responded that the U.S. and Rodman did not understand what was happening in El Salvador. “The problem is not between Church and government, it’s between government and people. . . . It’s not the church, much less the archbishop! If the government improved its treatment of the people, we will improve our relations with the government.”[6]

The Anglican Dean of Westminster Abbey came to El Salvador for the 20th anniversary of Romero’s assassination in 2000 and participated in a mass at the El Salvador de Mundo (the Savior of the World) traffic circle lead by the Roman Catholic Archbishop of Los Angeles. I cried during the service when Salvadorans passed the peace to me after all my country had done to support the Salvadoran government during their civil war.

[1] Andrew Chandler, Christian Martyrs of the Twentieth Century (Westminster Abbey; London 1999); Andrew Chandler (ed.), The Terrible Alternative–Christian Martyrdom in the Twentieth Century (Cassell; London 1998).

[2] Christian Martyrs of the Twentieth Century at 3, 8, 10, 13.

[3] The Terrible Alternative at 159-60. Father Ellacuria, of course, was one of the six Jesuit priests murdered by the Salvadoran military in November 1989. (See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).)

[4] Id. at 160, 164-65; Jon Sobrino, Archbishop Romero: Memories and Reflections at 9-10 (Orbis; Maryknoll, NY 1990); Post: Oscar Romero, A Saint for All People and All Time (Oct. 5, 2011). Jon Sobrino, whom I met at UCA in April 1989, escaped being murdered with his fellow Jesuits in November 1989 because he was lecturing in Southeast Asia. (Jon Sobrino, Ignacio Ellacuria, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador at 4-9 (Orbis Books; Maryknoll, N.Y. 1990).)

[5] The Terrible Alternative at 167-68.

[6] Id. at 170.

U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations

On October 17th the U.S. Supreme decided to hear two cases challenging whether corporations can be held liable for aiding and abetting foreign human rights abuses.[1] As a result, the Supreme Court should hear oral arguments and render decisions in the cases before the end of this term of the Court in late June 2012.

1. The Royal Dutch Petroleum Company or Shell Case

In the first of these cases, the Royal Dutch Petroleum Co. or Shell case, a group of Nigerians sued several Shell subsidiaries for money damages. They alleged that the companies had enlisted the aid of the Nigerian government to suppress local opposition to oil exploration and that government forces had killed and abused certain Nigerians and destroyed their property.[2] The complaint was brought under a U.S. federal statute known as the Alien Tort Statute, which simply provides that the U.S. district courts have “original jurisdiction of any civil action by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3]

In the Shell case, the U.S. Court of Appeals for the Second Circuit in New York City, in a lengthy opinion by Judge Cabranes, held, 2 to 1, that (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. [4]

The Second Circuit in Kiobel also said it was not prevented from so holding by its own precedents. Although at least five prior such precedents had not rejected ATS cases against corporations on that ground, according to Kiobel, they merely had assumed the viability of such suits for various reasons.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. But Judge Leval concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability.

2. Mohammad v. Jabril Rajoub

The second of these two cases raises a similar issue under another U.S. federal statute, the Torture Victims Protection Act (TVPA). That statute imposes civil liability for money damages on an “individual who, under actual or apparent authority, or color of law, of any foreign nation–(1) subjects an individual to torture . . . or (2) subjects an individual to extrajudicial killing . . . .” (Emphasis added.)[5]

Thus, the issue in the second case is whether a corporation or other legal entity is an “individual” within the meaning of the TVPA. In the Rajoub case, the U.S. Court of Appeals for the District of Columbia Circuit held that such entities were not “individuals” within the meaning of the TVPA and, therefore, could not be sued under that statute.[6]

[1] Reuters, U.S. Court to Hear Shell Nigeria Human Rights Case, N.Y. Times (Oct. 17, 2011); Kendall, High Court to Hear Shell-Nigeria Rights Case, W.S.J. (Oct. 17, 2011). See Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court, (July 9, 2011).

[2] Id., Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh’g denied, 642 F.3d 268 (2d Cir. 2011), pet. for reh’g en banc denied, 642 F.3d 379 (2d Cir. 2011), cert. granted (U.S. Sup. Ct. No. 10-1491 Oct. 7, 2011).

[3] 28 U.S.C. § 1350.

[4] Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010). Another recent federal appellate court came to the opposite conclusion, holding, 2 to 1, that corporations could be liable under the ATS. (Doe v. Exxon Mobil Corp., 2011 WL 2652384 (D.C. Cir. 2011).) I am surprised that Exxon Mobil has not filed a request for the Supreme Court to review the case.

[5] 28 U.S.C. § 1350 footnote.

[6] Mohammad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted (U.S. Sup. Ct. No. 11-88 Oct. 17, 2011). There is a split of authority in the lower federal courts on the issue of whether corporations may be held liable under the TVPA.