The Alien Tort Statute, 2004-Present

Since the U.S. Supreme Court’s Sosa decision regarding the Alien Tort Statute (ATS) in 2004,[1] the lower federal courts have continued to cope with all kinds of cases under the ATS.[2]

These lower court cases generally have held the following international human rights norms to qualify for ATS lawsuits under the Sosa criteria: torture and extrajudicial killings; cruel, inhuman and degrading treatment; prolonged arbitrary detention; war crimes; terrorism; nonconsensual medical experimentation on humans; human trafficking; forced labor; child labor; and conspiracy to commit genocide or aggressive war.[3]

Examples of such post-Sosa cases include three cases arising in El Salvador: (a) the case against Alvaro Saravia for his involvement in the murder of Oscar Romero; (b) the case against former Generals Garcia and Casanova for failure to stop torture; and (c) the case against former Minister of Defense Nicolas Carranza for torture and extrajudicial killing.[4]

On the other hand, most lower federal courts have rejected the following norms as actionable under the ATS: right to life, liberty and security of the person; peaceful assembly and association; right to advice of availability of consular notification; use of pesticides and defoliation chemicals; and brigandage (plundering and banditry by bands of robbers).[5]

Another major issue in the ATS cases since Sosa is whether corporations may be held liable under ATS for aiding and abetting foreign human rights violations. This is an issue now before the U.S. Supreme Court[6] and will be examined in a subsequent post.

[1] See Post: The U.S. Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004 (Oct. 28, 2011).

[2] See David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 14 (4th ed. 2009)[“Weissbrodt”]; Krohnke, Supplement to Chapter 14 (ATS Litigation) ofWeissbrodt,Ni Aolain, Fitzpatrick & Newman,International Human Rights: Law, Policy, and Process (4th edition) (Oct. 26, 2010), I have not carefully researched these issues during the last year so the above summary may not be completely accurate.

[3]  Id.

[4] See Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 11, 2011); Post: Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture (Nov. 11, 2011); Post: Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing (Nov. 13, 2011).

[5] See n.2 supra.

[6] 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).

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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