The conflict between the Alien Tort Statute litigation and foreign amnesty laws.

• Author: Hobbs, Carlee M.

ABSTRACT

Since the landmark case Filartiga v. Pena-Irala, foreign individuals have increasingly utilized the Alien Tort Statute to raise claims of human rights violations in the United States federal courts. Defendants, however, have alleged that principles of international comity necessitate dismissal of the suit when the foreign country in which the human rights violations occurred has granted defendants amnesty. While the doctrine of international comity permits dismissal if the case requires a federal court to adjudicate the internal affairs of a foreign country, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statue grants U.S. courts jurisdiction over violations that are universally recognized and specifically defined. This Note argues that this standard encompasses jus cogens crimes such as genocide, torture, summary execution, disappearance, arbitrary detention, war crimes, crimes against humanity, slavery, and cruel, inhuman or degrading treatment. An analysis of international law demonstrates that amnesties that provide blanket immunity for serious international crimes, such as violations of jus cogens norms, are illegal. Given this illegality, this Note argues that, even in the face of political pressure from the U.S. and other countries, federal courts should decline to dismiss Alien Tort Statue cases under international comity when a foreign amnesty law provides impunity for jus cogens crimes.

TABLE OF CONTENTS I. INTRODUCTION II. THE CONFLICT BETWEEN ATS LITIGATION AND AMNESTIES A. The Allen Tort Statute B. Amnesty C. ATS Conflicts with Amnesty III. MUST COURTS DEFER TO FOREIGN AMNESTIES AND DISMISS ATS SUITS? A. The Doctrine of International Comity B. The Legality of Amnesties under International Law IV. No DEFERENCE FOR BLANKET AMNESTIES V. CONCLUSION I. INTRODUCTION

Starting in the 1980s, two phenomena in international law began to develop concurrently: the use of the Alien Tort Statute (ATS) (1) as a vehicle for pursuing claims against human rights violators in the United States, (2) and the use of granting amnesty in order to bring peace to nations experiencing internal conflict. (3) Since the landmark case Filartiga v. Pena-Irala, (4) foreign individuals have used the ATS to pursue international human rights claims in the United States federal courts. However, while the ATS provides redress for human rights violations, foreign amnesties provide immunity for crimes committed during conflicts in order to end civil war and bring peace and reconciliation. Recently, the two developments have clashed in cases where the defendants claim that a suit under the ATS would violate an amnesty granted to defendants in the country where the tort or harm took place. (54)

The conflict between El Salvador's 1993 grant of amnesty for crimes committed during its civil war and a recent ATS suit in federal court illustrate this tension. In 2003, El Salvadoran victims of extrajudicial killings and torture filed a complaint (6) in U.S. federal court pursuant to the ATS (7) and the Torture Victims Protection Act (TVPA). (8) The defendant, El Salvador's Sub-Secretary of Defense and Public Security from 1979 to 1981, claimed that the El Salvadoran amnesty law barred the plaintiffs' suit in the U.S. (9) To support the defendant's claim, the Republic of El Salvador filed an amicus brief arguing that the U.S. court should defer to El Salvador's chosen method for handling domestic issues. (10) How should U.S. federal courts resolve such conflicts?

There is no easy resolution to the conflict that occurs when an ATS litigant is confronted with a defendant protected by a foreign amnesty. U.S. courts have relied on prudential doctrines to guide their ATS decisions, (11) but the conflict is further complicated when an amnesty is present because it is not squarely established whether amnesties are legal under international law. (12)

This Note attempts to determine under what conditions U.S. courts should dismiss a case when an ATS suit conflicts with a foreign state's amnesty law. Part II provides a brief history of the development of the ATS and the use of amnesty laws around the world and describes the conflict that exists between the two. Part III analyzes the use of international comity and the status of amnesties under international law as ways U.S. courts could dismiss an ATS claim involving a foreign amnesty. Part IV suggests that U.S. federal courts, when faced with a conflict between an ATS cause of action and a corresponding amnesty law, should only dismiss a claim when the amnesty excludes violations of jus cogens crimes. Using examples of the El Salvadoran and South African amnesties, this Note concludes that courts should look to the developing international standards regarding the acceptability of amnesties in determining whether to dismiss an ATS claim.

2. THE CONFLICT BETWEEN ATS LITIGATION AND AMNESTIES

   1. The Alien Tort Statute

      The ATS, originally part of the Judiciary Act of 1789 and codified today as 28 U.S.C. [section] 1350, states: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (13) There is no record of the ATS's legislative history, but recent scholarship has uncovered its "jurisprudential background." (14) The framers worried about the United States' inability to comply with international law and, in particular, the responses of powerful European states when torts were committed against their diplomats in the United States. (15) For example, in the 1780s, two disputes concerning foreign diplomats left the federal government embarrassed and unable to intervene since the federal courts had no jurisdiction over the claims. (16) Thus, the ATS granted the federal government jurisdiction over these types of cases (17) and demonstrated "an articulated scheme of federal control over external affairs ... where principles of international law are in issue." (28)

      The ATS was rarely used between 1795 and 1976. (19) The modern use of the ATS in the landmark Filartiga v. Pena-Irala decision arose from the context provided by an increase in global human rights norms and international agreements. (20) Filartiga had been tortured and killed by a Paraguayan police officer in 1976. (21) In Filartiga, the Second Circuit held that the ATS authorized claims against foreign individuals for violations of international human rights norms brought by foreign individuals in federal court. (22) Approximately 150 ATS claims were filed in the wake of Filartiga. (23)

      Congress weighed in by enacting the TVPA in 1992. (24) The TVPA provides a cause of action for torture or extrajudicial execution committed under color of foreign law against aliens or U.S. citizens. (25) The TVPA's legislative history explicitly endorses the ATS as interpreted by Filartiga. (26)

      In Sosa v. Alvarez-Machain, the Supreme Court finally addressed the ATS and generally endorsed the approach of Filartiga and the lower courts by holding that the ATS constitutionally permits courts to recognize common law claims for violations of international law. (27) However, the claim must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the ... 18th-century paradigms" on which the statute was based. (28) This interpretation of "a tort in violation of the law of nations" is only slightly different from the "universal, obligatory, and definable" formula that the courts developed after Filartiga. (29) Therefore, the crimes of genocide, torture, summary execution, disappearance, arbitrary detention, war crimes, crimes against humanity, slavery, and cruel, inhuman or degrading treatment--crimes that had been recognized by courts as creating ATS jurisdiction pre-Sosa--most likely trigger ATS jurisdiction postSosa as well. (30)

      Importantly, the opinion also clarified choice of law issues, which until Sosa had caused problems and vast inconsistencies among the lower courts. (31) The opinion clarified that while the substantive violation is governed by international law, federal common law provides the cause of action and governs non-substantive issues. (32)

      The Court in Sosa declined to "close the door to further independent judicial recognition of actionable international norms" but cautioned that "the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today." (33) In an important footnote, the Supreme Court identified two principles that would further limit the availability of relief in federal courts: (1) the exhaustion of remedies available in the domestic legal system; and (2) a policy of case-specific deference to the political branches. (34)

      Even though "case-specific deference" to the executive branch made its debut in Sosa, scholars have argued that it is not a new doctrine of deference. (35) Courts have long used several prudential doctrines to dismiss ATS cases. (36) The political question doctrine, act of state doctrine, international comity, and the foreign affairs doctrine have been used by defendants in ATS litigation to claim that the litigation interferes with the sovereign rights of a foreign government, requiring the case to be dismissed. (37) While the footnote in Sosa has generated much scholarly debate, (38) post-Sosa lower courts have ultimately applied the case-specific deference together with existing doctrines, such as the political question and foreign affairs doctrines. (39) As a result, ATS litigation post-Sosa appears unchanged for the most part, and courts have generally applied the same pre-Sosa doctrines. (40)

   2. Amnesty

      While the development of ATS legal jurisprudence in the United States permitted victims of human rights abuses to obtain redress, the increase in the use of amnesty laws in...