Corporations and the Alien Tort Statute

Fascinating developments concerning litigation in the United States under the Alien Tort Statute were described at the International Humanitarian Law Dialogs by Prof. David Scheffer, former United States ambassador at large for war crimes issues. David is now a professor at Northwestern University in Chicago.

The Alien Tort Statute is an ancient piece of legislation that gives American courts jurisdiction over violations of the laws of nations committed abroad. It sat dormant for almost 200 years, then was revived in the 1980s by creative human rights lawyers who successfully argued that it could be used to address human rights violations.

The United States Supreme Court is expected to rule in the coming weeks on an application for leave to appeal (known in the United States as an application for writ of certiorari) with respect to a suit filed against a corporation. As David Scheffer explained, there have been several cases involving corporations, and there is a ‘circuit split’. Courts of appeal in the United States have reached very different conclusions about legal issues. When there is such divergence, this opens the door to the Supreme Court.

There are two main issues.

The first is whether corporations can be sued at all under the Statute. With rather withering irony, David described how the conservatives on the United States Supreme Court recently upheld the freedom of expression rights of corporations in striking down electoral financing legislation (the Citizens United case). Yet conservative judges in the United States have also given corporations immunity from the Alien Tort Statute. Here they cite international law in support, noting that corporations cannot be prosecuted at the International Criminal Court. David recalled how the same judges regularly refuse to consider international law when it is being invoked in order to strengthen human rights and constitutional guarantees.

The second issue concerns aiding and abetting liability. Some judges have taken the view that aiding and abetting in violations of international human rights law requires both knowledge of the intentions of the actual perpetrator and an intent to commit the crime. Here, reliance is placed upon a rather perverse interpretation of article 25 of the Rome Statute. David, who was the US negotiator at the Rome Conference, knows better than anyone how to apply and interpret article 25. If the intent requirement is upheld, it makes suits against corporations immensely more difficult.

The idea that United States-based corporations can be held accountable in American courts for human rights violations that are related to their foreign activities – torture, child labour, modern forms of slavery, etc. – has huge implications. The debate before the Supreme Court is therefore more than a merely technical one about interpretation of an old piece of legislation.