On April 18, 2012, the U.S. Supreme Court unanimously decided that legal entities, including corporations, are not liable under the Torture Victims Protection Act (TVPA).
The TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against an “individual” who committed the wrong under authority or color of law of any foreign nation. The opinion for the Supreme Court by Justice Sotomayor held that the word “individual” in the statute encompasses only natural persons and thus does not impose liability against organizations. This conclusion was supported, the opinion stated, by the ordinary meaning of the word “individual” and the absence of any indication in the statute itself that Congress intended the word to have a different meaning. In addition, the counterarguments, including the legislative history of the TVPA, were not persuasive.
Justice Scalia joined the Sotomayor opinion, except for the portion that found support for its conclusion in the legislative history of the TVPA. Justice Breyer also joined the Sotomayor opinion, but filed a concurring opinion that said he did not believe the ordinary meaning of the word “individual” alone was sufficient to justify the Court’s conclusion, but that the legislative history supported the Court’s conclusion.
The unanimity of the Court and the issuance of the opinion only 49 days after the argument confirm my earlier opinion that this was an easy case for non-liability of organizations.
Congress, of course, at any time could amend the TVPA to expand or restrict the applicability of the statute.
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Comment: Human Rights Group Calls for Congress To Amend the TVPA To Subject Organizations to Liability
Pamela Merchant, the Executive Director of the Center for Justice & Accountability, a leading human rights NGO, has pointed out that even though the U.S. Supreme Court’s April 18th decision held that organizations were not liable under the Torture Victims Protection Act (TVPA), the Court did say in dictum that the statute “still imposes liability on . . . ‘officers who do not personally execute the torture or extrajudicial killing’ but who issue ‘an order to torture or kill.’ ” The Supreme Court for this proposition cited a lower federal court decision, Chavez v. Carranza, which held a former Salvadoran Vice Minister of Defense liable for $6 million for his failure to prevent the torture and extrajudicial execution of six leaders of a political group opposed to the Salvadoran government.
Ms. Merchant also contended that “[h]uman rights crimes are almost always designed, orchestrated, financed and supported by states, organizations, corporations and other non-natural persons.” Two examples of such involvement by paramilitary groups from Colombia and Haiti were mentioned.
Therefore, the CJA Executive Director called for Congress to amend the TVPA “to ensure that organizations responsible for egregious human rights abuses – such as torture, extrajudicial killing, and crimes against humanity – be held liable.”
Merchant, Congress must come to aid of torture victims (April 19, 2012), http://www.intlawgrrls.com;
Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing (Nov. 13, 2011), http://dwkcommentaries.wordpress.com/2011/11/13/former-salvadoran-vice-minister-of-defense-held-liable-by-u-s-courts-for-6-million-for-torture-and-extrajudicial-killing-2.