April 18 (Bloomberg) -- Can U.S. courts sit in judgment of foreigners who commit genocide or torture against foreigners abroad? From 1980 until now, the answer was yes, provided the human-rights violator set foot on U.S. soil or had substantial American contacts. But the Supreme Court, in Kiobel v. Royal Dutch Petroleum, has all but closed the doors to international human-rights litigation in our courts. And in a perverse twist, it relied on principles of international law to do so.
Civil trials in the U.S. of those who have committed the worst violations of human rights abroad have become relative common over the years, but legally speaking, they have rested on a slender reed. When the global human-rights movement gained traction in the late 1970s, American advocates aspired to do more than shame the worst violators. They hoped to get the credibility and moral authority of the U.S. courts behind their efforts.
The key was an obscure 1789 law called the Alien Tort Statute, which gave the federal courts jurisdiction when a noncitizen sued for an injury committed “in violation of the law of nations.” In 1980, Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit -- who first became famous for sentencing the Soviet spy Julius Rosenberg to death -- held that the tort statute allowed Paraguayan expatriates living in the U.S. to sue another Paraguayan who happened to have visited New York for torturing and killing their son in Paraguay.
Supporters hailed the 1980 decision, Filartiga v. Pena-Irala, as the Brown v. Board of Education of international human-rights law. Later lawsuits against such notorious human-rights violators as the Serbian warlord Radovan Karadzic underscored the political value of suing foreigners domestically. Several major corporations have found themselves on the defensive, including Chevron Corp., Coca-Cola Co. and Yahoo! Inc. Although these weren’t criminal trials, and any monetary damages were almost always impossible to obtain, the trials cast a harsh light on torture and genocide. Even people who don’t much care for the U.S. tend to believe that its courts do a thorough and honest job of fact-finding.
Establishing the facts of a human-rights violation in a U.S. court is therefore much more powerful as a tool of condemnation than mere declarations or findings by international bodies that might be politically biased, incompetent or both.
The critics of these domestic trials attack them as legally absurd and diplomatically unwise interventions in foreign affairs. In 2004, in a case involving a Mexican doctor accused of helping kill a U.S. drug-enforcement agent, the Supreme Court came close to shutting them down, but they were saved in a complicated decision by Justice David Souter. (Many observers thought that the court -- then in the long, slow process of requiring the George W. Bush administration to extend international legal rights to detainees at Guantanamo Bay, Cuba -- may have thought that the time wasn’t quite right to deal a symbolic blow to human-rights advocates.)
They’re finished after the court’s latest ruling, in a case that alleged the involvement of two Shell units in torture in Nigeria. We now learn that international law can be not only a shield for those captured or tortured but also a sword for avoiding legal obligations. Chief Justice John Roberts, in an opinion joined by the three other conservatives and Justice Anthony Kennedy, relied on a general principle of international law to end litigation under the Alien Tort Statute: the principle of extraterritoriality.
That principle, as applied in U.S. law, embodies a presumption that our laws don’t reach to conduct in the territory of the foreign sovereign unless Congress expressly says so. The idea is that what happens in other countries is ordinarily their business, not ours. There are exceptions, such as the Protect Act of 2003, which makes it a U.S. crime for anyone (including a foreigner) to have sex with someone underage (including a foreigner) outside the U.S. But that infringement on the principle of extraterritoriality was clearly intended by Congress.
According to Roberts, the Alien Tort Statute shouldn’t be read to apply to conduct occurring abroad unless the law so specifies.
It must be said that Roberts’s opinion has considerable strengths. The historical origins of the law are shrouded in mystery, and judges have often called it a “legal Lohengrin.” It was probably intended to protect foreign diplomats living in the U.S. Even if that is untrue, it is certainly accurate that before 1980 it was never used as a tool of international human rights. There is a good reason that sovereign nations like the principle of extraterritoriality: It embodies the values of mutual respect, noninterference and sovereign equality.
Yet, there is also something tragic about Roberts’s opinion, which rejects judge-made law that has come to function as an important part of the moral project of enforcing human rights globally. What does it say about our moral responsibility to protect those abroad from genocide if we can’t even sue the perpetrators at home for fear of interfering with their countries’ sovereign rights?
As Justice Stephen Breyer put it in an opinion concurring in the judgment but not the court’s reasoning -- and joined by the court’s three other liberals -- if the torturer has substantial contacts here, and we have an important national interest in keeping our country from becoming a harbor for torturers, why not subject the “enemy of mankind” to civil liability? Behind that reasoning is the recognition that the most basic human rights are actually special -- and are of greater importance than the legal nicety of treating all governments the same, no matter how evil they might be.
A final route exists for human-rights litigators: The Torture Victim Protection Act of 1991, which allows domestic suits against foreign individuals (not organizations) who have engaged in official torture. Justice Kennedy wrote a separate concurrence to point out that this statute still exists. Yet the silence of the other conservatives and Kennedy on that law speaks volumes: They don’t want to invite more human-rights lawsuits. The responsibility to preserve our responsibility to protect now lies squarely with Congress. I wish that made me feel more confident than it does.
(Noah Feldman, a law professor at Harvard University and the author of the forthcoming “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter. The opinions expressed are his own.)
To contact the writer of this article: Noah Feldman at email@example.com.
To contact the editor responsible for this article: Tobin Harshaw at firstname.lastname@example.org.