Suing Saddam - And Others - In U.S. Courts:
The Controversy Over the Alien Tort Claims Act

By JAKE KREILKAMP

Wednesday, Jul. 09, 2003

In the lawsuit, Haider alleged that Hussein violated international law by commanding that Haider's father be imprisoned, tortured, and ultimately murdered, and that Haider himself be kidnapped and tortured.

Is Haider's lawsuit valid? Can a noncitizen sue another noncitizen for damages in a U.S. court when the basis for the lawsuit is events that exclusively happened abroad, and the law allegedly violated is international law?

Under the U.S.'s Alien Tort Claims Act, the answer - surprisingly - is yes. The ATCA allows "any civil action by an alien for a tort only, committed in violation of the law of nations."

But enforcing any damage award is another matter. In Haider's suit, Hussein is extremely unlikely to pay. Even now, our army is desperately trying to find him. And though Haider could, alternatively, ask the U.S. government to release funds seized from Hussein, it's far from certain the government would agree.

Granted, even without an enforceable damage award, a judgment in Haider's favor would still have some declaratory meaning - as a factual adjudication of what happened to Haider and his father, and as a legal declaration that it violated international law. An ATCA suit, if successful, can have potent symbolic value: A court confirms the terrible harm the plaintiff has suffered. In most of ATCA cases, there isn't the slightest chance of relief in the legal system of the country where the harm occurred; U.S. courts are the only alternative.

But is this symbolic value enough to justify the continued existence of the ATCA - which has lately endured criticism from the Bush Administration, among others? To answer that question, a closer look at the statute's history, and its interaction with U.S. foreign policy, is in order.

The Long History of the Alien Tort Claims Act

The ATCA was enacted in 1789, so that piracy claims could be adjudicated in American courts. Piracy was the terrorism of its time. (Indeed, the only explicit reference to international law in the U.S. Constitution comes in a clause granting Congress authority to "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.")

For almost 200 years, the ATCA was hardly used. But in 1980, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit allowed two Paraguayan citizens to go forward with a suit charging a Paraguayan general with torture - plainly a violation of the law of nations.

Two years ago, a group of Bosnian women successfully sued Bosnian Serb leader Radovan Karadzic for human rights abuses they suffered during the Bosnian war. They won a $4.5 billion judgment. But a judgment is not the same thing as cash in hand, and they have not yet collected a cent - a recurring problem with even successful ATCA claims.

ATCA Damage Awards: Collection Difficulties; Injustice to Other Victims

Ironically, it may not be such a good thing even when the plaintiffs do manage to collect - usually from assets that have been seized by the U.S. government. After all, unless the group of plaintiffs is very large indeed, the award may leave out literally thousands of equally deserving victims of the very same abuses that the suit addresses.

Moreover, forcing seized funds out of U.S. government hands, and into those of the plaintiffs, may have undesirable consequences. The result in a suit brought under a law similar in effect to the ATCA (the law permits plaintiffs to sue certain countries who are deemed to be supporters of terrorism) provides a cautionary tale.

There, the plaintiffs sued the Cuban government for shooting down two small planes over Cuban airspace. In 1997, a U.S. district judge awarded them a $187 million judgment. They ultimately recovered the money from funds the U.S. government had seized from Cuba's nationalized telephone service. But Cuba cut off phone service to the United States - leaving numerous exiles out of phone touch with their families.

Does the ATCA Undermine U.S. Foreign Policy?

Besides problems of justice and fairness like these, there is another, broader problem with the ATCA: It can make it very difficult for the United States to pursue its foreign policy objectives.

The foreign policy argument for abolishing the ATCA - an argument supported by the Bush Administration, and one that is currently gaining momentum - goes like this: The President is meant to be the final authority on U.S. foreign policy, and for good reason: A unitary foreign policy is far preferable to a divided one.

Those who deal with the President need to know the agreement they reach is final, and that he (or she) is the only relevant authority on the subject. If dozens of district courts make their own individual judgments about which foreigners are guilty of which offenses against "the law of nations," as defined by those same courts, there are inevitably going to be conflicts that impede the President's authority and policies.

The ATCA Aggravates World Resentment at the U.S. Legal System's Reach

But there is another, related problem: world hostility to the vast reach of the American legal system.

Many countries are now eager to collaborate to form credible international institutions to deal with international legal problems. But in many instances, the U.S. - and particularly the current Administration - has shunned proposed international solutions.

For instance, the U.S. has refused to sign onto treaties that have strong international support. In addition, it has resisted International Criminal Court jurisdiction over its own citizens even as it seeks to impose war crimes responsibility on other country's nationals.

In this context, it is no wonder that other countries resent a U.S. law like the ATCA - which allows U.S. courts to reach out to decide issues that occurred abroad, between citizens of other countries. And it is no wonder that there is a lot of suspicion about the idea of U.S. courts' making their own decisions about the exact contours of international law.

After all, can the U.S. live with the converse situation? What if other countries pass ATCA-like statutes that allow their courts to reach out to adjudicate disputes between American citizens?

One Hope of a More Effective, Productive ATCA: Suits Against Multinationals

The human rights community has limited resources. Is the ATCA really the best way to use them? As noted above, such suits tend to anger our own government, and to result in judgments of symbolic value alone.

Given the aim of altering the behavior of governments in order to ensure that they respect human rights, such suits thus may be ineffective - or at worst, even counterproductive. Fortunately, though, one new kind of ATCA suit - against a multinational corporation - may be more effective than those we've seen so far. In one such case, currently being considered by the U.S. Court of Appeals for the Ninth Circuit, a group of Burmese citizens have charged the oil giant Unocal with collaborating with the Burmese military junta. Similar cases have been brought against companies that do business in Nigeria, Indonesia and Sudan.

Of course, the foreign policy anti-ATCA argument also has force in the context of suits against multi-nationals - as many corporations, and our current Administration, have argued. Do we really want individual judges making decisions (based on some nebulous concept of the "law of nations," no less) that could have a profound impact on entire regions? Maybe not. But here, at least, there are readily identifiable, real-world consequences that can be balanced against each other - unlike in the context of ATCA suits against world leaders.

Unlike dictators like Hussein, multinationals with presences in the U.S. - or in countries in whose courts U.S. judgments are generally enforceable - ignore ATCA cases at their peril. Justice for Saddam won't come in the form of an ATCA suit, but a war crimes prosecution. However, justice for the Iraqi people - or other victims of repressive regimes - might come about as a result of ATCA suits against multinationals.


Jake Kreilkamp graduated from New York University Law School this year. He previously worked for PEN American Center, on freedom of expression issues.

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