When Photos Are Genocide: Making a Claim Under the Alien Tort Statute for the Abu Ghraib Prison

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 10 No. 3

Gonzaga Journal of International Law Volume 10 - Issue 3 (2006-2007) 10 Gonz. J. Int'l L. 370 (2007)

When photos are genocide: making a claim under the Alien Tort Statute for the Abu Ghraib prison scandal

Dana Michael King*

Cite as: Dana Michael King, When Photos are Genocide: Making a Claim Under the Alien Tort Statute for the Abu Ghraib Prison Scandal, 10 Gonz. J. Int'l L. 370 (2007), available at http://www.gonzagajil.org.

It is the ambiguity of our ideas of representation that lies at the heart of the Abu Ghraib torture scandal and prevents us from seeing how the act of photographing naked detainees would in itself have been seen as rape by Iraqis, even aside from the specific use intended for the photographs . . . [I]t is our distinction between physical rape and "virtual" rape that may be questionable.[1]

[T]he horror of what is shown in the photographs cannot be separated from the horror that the photographs were taken.[2]

I. Introduction...................................................................... 371

II. American Booksellers, Inc. v. Hudnut................................. 373

III. The Alien Tort Statute..................................................... 374

A. What Is A "Tort"?............................................................. 374

B. The Law of Nations........................................................... 376

C. Who Can Commit A Tort?.................................................. 377

IV. The Media Case................................................................... 378

A. The Accused..................................................................... 379

B. RTLM.............................................................................. 380

C. Kangura............................................................................ 380

D. Genocide.......................................................................... 381

V. Holding Producers and Distributors of the Abu Ghraib Photos Civilly Liable Under ATCA 382

A. Creating Precedent: Does the Media Case Establish a Precedent Under International Law With Which To Hold the Producers and Distributors of the Abu Ghraib Photos Civilly Liable Under ATCA for Violation of International Law?............................................................................. 383

B. Making the Claim: What Would a Plaintiff Need to Show to Make an ATCA Claim Against Producers and Distributors of the Abu Ghraib Photos?.............................. 385

VI. Conclusion.......................................................................... 389

I. Introduction

In late 2003, shocking pictures surfaced from Iraq's Abu Ghraib prison documenting American soldiers' sexual abuse and torture of Iraqi prisoners in their custody.[3] A short time after their release, in a special report for the Guardian, military historian Joanna Bourke cautioned viewers "not to see these sadistic images as unique . . . [as] torture and sexual violence are endemic in wartime."[4] However, the documentation of torture and abuse at Abu Ghraib has added a new and distinct form to 'routine' wartime atrocities. With the aid of relatively inexpensive digital cameras, computers, and the internet, soldiers are able to produce, capture, and re-play each victim's torture and sexual violation and to create powerful visual messages about American domination and destruction of Iraqi people for a potentially worldwide audience. The emergence of the Abu Ghraib photos has raised a question that has lain dormant since the pornography debates that raged twenty years ago: might the production and dissemination of photos of actual torture and sexual violence be a harm independent of the documented violence?

Beginning in the late 1970's and continuing into the 1980's, the United States was caught in debate over how pornography should be defined and whether it should be protected or sanctioned. Harms associated with the business were investigated and documented by a wide range of government actors. At the federal level, the Presidential Commission on Obscenity and Pornography in 1970 and the Attorney General's Commission on Pornography in the mid-1980's investigated and issued reports on the topic. At the local level, municipal and state hearings on pornography took place in Minneapolis, Indianapolis, Los Angeles, and throughout Massachusetts during the 1980's.[5] The legal debate focused on whether pornography was speech - and therefore afforded the broad constitutional protections of the First Amendment - or action - and subject to proscription similar to sexual harassment and prostitution.[6] American Booksellers, Inc. v. Hudnut[7] settled the legal debate by holding that pornography was speech subject to full First Amendment protections.

Two developments in national and international jurisprudence re-open the question as to whether the production and dissemination of images of violence might be actionable in some circumstances in U.S. courts under international law. First, a 1980 opinion in Filartiga v. Pena-Irala[8] revived the dormant Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, a federal law originally passed in 1787, as a means to hold violators of international law civilly liable in U.S. courts. Subsequently, Prosecutor v. Ferdinand Nahimana Jean-Bosco Barayagwiza Hassan Ngeze (the "Media Case"),[9] a case decided by the International Criminal Tribunal for Rwanda (ICTR) in 2003, held owners and managers of media outlets criminally liable for genocide, direct and public incitement to genocide, and crimes against humanity for messages purveyed through those outlets. Though ICTR jurisdiction is limited to claims arising from the Rwandan conflict during 1994,[10] its decisions may be persuasive in determining the scope, contours, and definition of international law. Taken together, ATS and the Media Case may create an opportunity to hold the photographers and distributors of the Abu Ghraib photos civilly liable in the United States for violation of international law.

In this paper, I will examine recent case law to determine whether a prisoner in Abu Ghraib who had been sexually abused and had the abuse photographed and circulated within the prison could bring a civil claim against the producers and distributors of those images in U.S. courts for violation of international law, even though similar images, taken within the United States, might be protected by the First Amendment. Also, I will examine what elements a plaintiff would have to meet to make such a claim under the Alien Tort Claims Act.

II. American Booksellers, Inc. v. Hudnut

In its decision in American Booksellers, Inc. v. Hudnut, the Seventh Circuit Court of Appeals struck down as unconstitutional an Indianapolis ordinance making coerced participation in, forced consumption of, trafficking in, and assault arising from pornography, acts for which pornography producers and vendors could be civilly liable.[11] The Indianapolis ordinance had defined pornography as a form of gender discrimination involving "the graphic sexually explicit subordination of women [men, children, or transsexuals], whether in pictures or in words."[12] Unlike anti-obscenity laws, which prohibit all sexually explicit and offensive speech, the Indianapolis ordinance targeted those sexual depictions that dehumanized persons or showed them experiencing sexual pleasure from violent and unwanted physical acts.

The Court found the ordinance overbroad and held it impermissibly prohibited graphic sexual depictions based on the viewpoint expressed.[13] The Court adopted a two-part response to appellant's contention that women were harmed in the production and consumption of pornography: (1) that any sexual torture occurring during the production of pornographic films was independently proscribable and not specific to, nor necessary for, the materials' production[14] and (2) that images of harm are not actually harm.[15] The argument that "pornography is not an idea; pornography is the injury"[16] was rejected; though the Court acknowledged pornography's harmful socializing effects and ability to influence social relations in the workplace, the home, and on the streets.[17] Still, it maintained that moving depicted gendered subordination from idea to action and harm required the viewer's "mental intermediation."[18] In so doing, the Court effectively placed responsibility, and potential liability, for pornography's harmful effects on those that received and acted on its messages rather than the purveyors of the message. Having separated the speech from the harm, the Court was able to narrowly analyze the ordinance in terms of its impact on freedom of speech. The ability to advocate and influence, it found, was the heart of what the First Amendment was created to protect: "[i]f the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation that would be the end of speech."[19] Given this, the Court held the ordinance unconstitutionally limited the First Amendment rights of creators and distributors of pornography in holding them civilly liable for the acts their product conditioned its audience to perform.

III. The Alien Tort Statute

The Alien Tort Statute or the Alien Tort Claims Act ("ATS", "ATCA" or the "Act"),[20] reads, "[t]he district courts shall have original jurisdiction of any civil action by an alien for a...