U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the U.S. 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 [U.S.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

  • The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
  • The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
  • The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
  • The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . .  onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the  whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . .  [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.”  Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer,  is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights.  The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.


[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

 

 

 

 

 

 

 

 

Enforcement of International Human Rights Norms with U.S. Immigration Laws

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . .  be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)
Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

Innocente Orlando Montano
Innocente Orlando Montano

This set of provisions currently is being used with respect to another former Salvadoran military officer,  Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Sergei Magnitsky Grave
Sergei Magnitsky Grave

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

 Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . .  command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

  • Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
  • Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
  • Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
  • Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He  admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
  • During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending  one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

  • During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
  • Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
  • In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
  • After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of  investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
  • When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
  • A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
  • Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It “uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.


[1]  Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3]  The ATS (28 U.S.C.§1350) provides that U.S.”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 [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4]   The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . .  Magnitsky, financially benefitted from the detention, abuse, or death of . . .  Magnitsky, or was involved in the criminal conspiracy uncovered by  . . . Magnitsky.” That presidential  list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7]  A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web.  Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.