The Alien Tort Claims Act in Danger: Implications for Global Indigenous Rights

A crucial, formerly obscure piece of US legislation that allows violations of international law to be tried in US courts is currently facing a challenge from John Ashcroft’s Justice Department. The Alien Tort Claims Act (ATCA) has been used by human rights advocates to sue alleged violators of international law living outside the United States in US courts, and more recently, to try US corporations accused of consenting to or aiding in unjust and illegal practices in their foreign operations. The law has been an important tool in indigenous rights advocacy and empowerment, and its imperilment is seen as a threat to indigenous peoples seeking justice around the world.

The act was a part of the United States’ first Judiciary Act, signed into law by President Washington in 1789. Its original intentions remain unclear. Many have speculated that it was intended to prevent pirates from seeking safe haven on US coasts, or to insure a forum for ambassadors who were victims of assault. The act was hardly used for almost two hundred years until Peter Weiss, a human rights attorney, used the long forgotten law to try a Paraguayan police official residing in Brooklyn for torturing and murdering the son of a dissident. Since then, the law has been used against alleged human rights violators living or traveling in the United States, including Philippine President Ferdinand Marcos, Bosnian Serb leader Radovan Karadzic, Yugoslavian President Slobodan Milosevic, and Zimbabwean President Robert Mugabe. One of the most prominent ATCA cases was brought by Teresa Xuncax, a member of the Kanjobal nation of Guatemala, in an attempt to hold accountable General Hector Gramajo. Gramajo, a former Guatemalan vice chief of staff, director of army general staff and minister of defense, was a key architect of the country’s genocidal civil war in the 1980s. He was served on his graduation day from Harvard’s Kennedy School of Government, where he studied law in the early 1990s.

Within the past decade, the ATCA has seen renewed interest as people around the world have tried to bring US corporations to justice for knowingly enabling or supporting human rights violations and environmental degradation outside the United States. In large part, indigenous peoples have led this initiative in an attempt to rein in extractive industries. In 1994 indigenous people from Ecuador sued Texaco for severely polluting the Amazon Rainforest and severely sickening its dwellers. In 1997 the law was used by the Wiwa family to file a suit against Royal Dutch Shell Petroleum Company for aiding in the murder of large numbers of Ogoni people living on land destroyed by the company, including Movement for the Survival of the Ogoni People (MOSOP) founder Ken Saro-Wiwa. Four years later, residents of Aceh, an Indonesian province currently railed by conflict between Free Aceh Movement (GAM) and the Indonesian Military, sued ExxonMobil, saying it knowingly enlisted a corrupt and notoriously cruel military to suppress local protests. In a rare but technically legal maneuver, Colin Powell and the State Department attempted to shut down the case by sending a stern letter to the presiding judge; a decision from the court still awaits. While the administration argues that the suit presented a threat to US- Indonesian cooperation on anti-terrorism measures, critics charge the administration with crass defense of rights abuses from an allied nation and a major transnational corporation.

Doe v Unocal will likely be the first ATCA case against a corporation to be brought to trial; most others have either been settled out of court or sent to other countries for trial. This case brings members of Burma’s Karen and Mon ethnic minorities living in Tenasserim region against the El Segundo-based oil company. Unocal is accused of hiring the Burmese military for security on its pipeline, knowing that the military would use the forced labor of ethnic minorities, as well as murder and rape those in the villages through which the pipeline travels. The case rests on the allegation that Unocal was well informed of the brutal methods of the Burma military, and was thus complicit in its crimes when it paid their soldiers to guard its project. Lawyers for the plaintiffs point to a 1992 report by the company’s consultants which explicitly states that the military “habitually uses forced labor” in these circumstances.

Supporters of Unocal and critics of the current uses of the ATCA, including pro-business lobbies and key members of the Bush administration, argue that the act is being misinterpreted, and works counter to U.S. interests. This camp argues that increased investment in poor countries that do not necessarily follow international law will, in the long run, benefit both the U.S. and the people of these countries, as increased privatization and foreign investment could bring democratization and increased prosperity. The ATCA scares corporations from investing, they argue, and therefore ends up harming those suffering under oppressive governments. This side also argues that this kind of suit impedes U.S. foreign policy. Suing friendly governments for human rights abuses, they argue, will hinder thorough anti-terrorism efforts abroad.

It is in this spirit that the Justice Department filed a ''friend of the court'' (amicus curiae) brief on behalf of Unocal meant to influence the 11-judge panel of the US court of Appeals for the Ninth Circuit, which is considering whether to let the case go to trial. In the brief, they argue that it is not the U.S. courts’ place to deal with violations of international law, stating, “it is the function of the political Branches, not the courts, to respond (as the U.S. Government actively is) to bring about any change.” The brief refers to the ATCA as “a historical relic” that is being misinterpreted and applied to cases that have little to do with the United States. The Justice Department states that the law “raises significant potential for serious interference with important foreign policy interests.” In submitting this brief, the Administration is not only declaring its support for Unocal, but also attempting to use its influence to reverse established precedent set by previous rulings and prevent the use of the ATCA for holding rights abusers to account.

Most analysts doubt that the Ninth Circuit judges will be swayed by this argument, as they were well aware of the administration and the business lobbies’ positions when they made their original decision. Some, like Earth Rights International litigation director Richard Herz, author of “Litigating Environmental Abuses Under the Alien Tort Claims Act: a Practical Assessment,” caution that the Justice Department’s influence could be much stronger should the case go to the U.S. Supreme Court. He also warns that the Administration could use its influence to quietly create new legislation to imperil ATCA cases.

Herz, like many others in human and environmental rights advocacy circles, disagrees with the administration’s opinions and actions on the ATCA. The strongest objections challenge the Administration’s assertion that enforcement of international human rights is discordant with U.S. foreign policy objectives. Proponents of ATCA, including indigenous people and their advocates, environmentalists, progressive legal guilds, unionists, and others working for social justice, argue that the U.S. must uphold first and foremost the standards set by international law, and not hide behind flimsy political alliances with abusive governments. Richard Herz urges that “if you think that promoting human rights is, or should be, U.S. foreign policy, then you should work to defend to the ATCA.” ATCA proponents suggest that defending international law is pragmatic; it is in the United States’ best interests to promote international human rights, as it would create a less hostile and turbulent world for U.S. and the world at large. Many argue that it is hypocritical to refuse to prosecute human rights violators implicated in the alleged pursuit of terrorists, as this view denies the reality of state-inflicted terror.

Many activists feel that the Justice Department’s recent attack on the ATCA stems from a combination of right-wing ideology and alliances with abusive governments and businesses. The administration finds repugnant the idea of enforcing international law, and sees it primarily as a liability and an attack on allies. US government officials also fear the day that the law will be used against them, as it could be interpreted to do.

For indigenous peoples seeking admissions of guilt and reparations from their government or foreign corporations, the Justice Department’s efforts present a very real threat. The law is one of the few forums that allows marginalized people to directly confront their oppressors, and thus serves a critical function in the process of righting past wrongs and perhaps preventing future crimes. One of the most significant strengths of the law is its power to give “teeth” to international law. The presence and use of this law, especially when dealing with trans-national corporations, gives key actors economic incentive to respect the rights of all peoples. Its effects are quite visible, as demonstrated by several major oil companies’ recent collaborations with non-governmental organizations like Human Rights Watch and Greenpeace to develop more fair practices.

The Alien Tort Claims Act is one of the few laws that present an opportunity to hold the powerful accountable for their actions. While thousands of international codes of conduct are in place, there are scant mechanisms with which they can be enforced. When such initiatives are created, they are often rendered ineffective by U.S. obstinacy. The U.S. has subordinated the recently created International Criminal Court by lobbying to make its citizens permanently immune from persecution. Laws like the ATCA must be enforced in order to create a concrete negative association with rights violations; without them, corporations and brutal leaders will continue to violate international law unabated. The Justice Department’s current efforts are a threat to indigenous peoples and others who seek justice and accountability for those who break those most fundamental codes of human conduct.

Sam Stein is a Cultural Survival intern and a student at Sarah Lawrence College.