Liability of secondary actors under the Alien Tort Statute: aiding and abetting and acquiescence to torture in the context of the femicides of Ciudad Juarez.

• Author: Simmons, William Paul

Since 1993, more than 400 women have been murdered in Ciudad Judrez, Mexico. Few, if any of these crimes have been solved, largely because local Mexican officials have failed to adequately investigate them. This Article argues that femicide victims could hold those officials civilly liable as third parties for these femicides in U.S. federal courts under the Alien Tort Statute (ATS). Although aiding and abetting liability is the most common form of third-party liability sought in ATS cases, several high profile cases have challenged whether it should exist under the ATS. The author agrees with many courts and scholars that aiding and abetting liability should be sustained. However, the author argues that none of the previously proposed standards for aiding and abetting would reach the Mexican officials. Instead, the author proposes "acquiescence to torture" as an innovative form of third-party liability. Acquiescence to torture, as it has been defined in U.S. non-refoulement cases, would broaden the scope of the ATS to allow a suit against Mexican officials for their failure to adequately prevent or investigate the femicides in Ciudad Juarez.

[dagger] William Paul Simmons, assistant Professor of Political Science, Arizona State University. Ph.D., Louisiana State University 1996. This Article is dedicated to Diana Washington Valdez and Lourdes Portillo, courageous and talented women who have been instrumental in calling attention to the femicides in Ciudad Juarez. The author is grateful to Rebecca Coplan and Stacy Nykorchuk for their tireless and invaluable research assistance. Thanks also to Sarah Bennett, Zeenat Hasan, and several classes of students who helped me develop the ideas in this Article while completing problem-based learning assignments. Special thanks to the fine editorial team of the Yale Human Rights & Development Law Journal.

INTRODUCTION

Since 1993, more than 400 women have been murdered in Ciudad Juarez, Mexico. Over 120 of these murders have been deemed sexual homicides. Several high profile national and international reports have placed blame on the local Mexican authorities for failing to exercise due diligence in the investigation, prosecution, and punishment of these crimes and for failing to take reasonable steps to prevent these murders. (101) The "femicides" and the local Mexican government's poor response have been widely publicized internationally by groups in Ciudad Juarez, Mexico, the United States, and other countries through organized protests, petition drives, and other actions. (2) Several family members and NGOs have initiated cases in the Inter-American Commission of Human Rights against the national government of Mexico (3) and these will most likely lead to action by the Commission and, eventually, by the Inter-American Court of Human Rights. However, the Inter-American Commission and Court have both been faulted for their lengthy procedures, and the Commission, especially, has a poor record of state compliance with its decisions. (4) These institutions can make rulings against national governments, but they cannot hold specific individuals in the Mexican government directly accountable. This paper argues that in order to hold local Mexican officials directly accountable for failing to adequately investigate and prevent the femicides, victims of the femicides or their families could sue the officials in U.S. federal courts on a theory of third-party liability under a once obscure American law, the Alien Tort Statute (ATS). (5)

Although the ATS was passed as part of the Federal Judiciary Act of 1789, it was relatively unused and unknown until 1981. Since then, victims of human rights abuses from dozens of countries have used the ATS to bring civil suits in U.S. courts against governmental officials and multinational corporations for a range of abuses. The 2004 Supreme Court case Sosa v. Alvarez-Machain cleared up, for the most part, the most fundamental legal issue in ATS jurisprudence: whether or not the ATS affords new subject-matter jurisdiction. (6) The next major controversy in ATS jurisprudence appears to be whether the ATS allows for third-party liability, (7) especially under theories of aiding and abetting. (8) This issue is particularly contentious because most, if not all, of the high-profile ATS cases against multinational corporations involve theories of third-party liability. The federal courts have divided on this issue. Some have ruled that there is no aiding and abetting liability under the ATS, but most courts have found aiding and abetting liability and other third-party liability under a range of legal theories. (9) Congress recently considered a bill, the Alien Tort Statute Reform Act, (10) that would have greatly reduced or even eliminated third-party liability under the ATS. Several legal scholars have argued for some form of aiding and abetting liability under the ATS, although they differ on the standards that should be used to determine such liability. (11) I argue below that third-party liability, including aiding and abetting, should remain under the ATS, but that none of the proposed standards would reach the actions or inactions of the local Mexican authorities for the Juarez femicides. I then introduce acquiescence to torture, as specified by the Convention Against Torture (CAT), (12) as an alternative form of third-party liability that would reach the local Mexican officials. This theory would comport well with the law of nations as defined by the ATS, and, since it is not a form of secondary liability but rather primary liability for secondary actors, it could survive potential court rulings against aiding and abetting liability under the ATS and might even survive Congressional action intended to restrict third-party liability.

To summarize, acquiescence to torture is important to consider in the ATS context for three reasons. First, if the Supreme Court ultimately holds that the ATS does not extend to aiding and abetting liability, some primary liability for secondary actors would likely still be imposed on those who have acquiesced to torture. Second, if Congress acts to restrict third-party liability under the ATS, it would not necessarily affect primary liability for acquiescence to torture. Finally, a developing body of jurisprudence defines acquiescence to torture to include a state's failure to prevent or investigate abuses. This definition would broaden the scope of the ATS to allow for claims against Mexican officials for their failure to adequately prevent or investigate the femicides in Ciudad Juarez.

The first part of this paper provides an overview of the femicides in Ciudad Juarez, highlighting the actions and inactions of the local Mexican officials. Part II briefly outlines the development of ATS jurisprudence to the present with a special emphasis on the Sosa case. Part III provides an indepth

analysis of the aiding and abetting controversy, focusing on the Doe v. Unocal cases, in which this issue received its most extensive legal hearing, as well as recent post-Sosa cases and scholarly writings advocating various standards for aiding and abetting liability. Part III concludes with the argument that none of the proposed standards for aiding and abetting liability would reach local Mexican officials for the femicides in Juarez. Part IV introduces the "acquiescence" language from the CAT, discusses how various international and national courts have defined this language, and argues that such an interpretation can lead to primary liability of secondary actors under the ATS. A major focus of Part IV is the definition of acquiescence in U.S. non-refoulement cases, which includes the failure to adequately prevent and investigate torture. Part V considers possible objections to the use of acquiescence as a form of third-party liability in ATS cases. The concluding section places my proposals in the context of the progressive development of human rights law, including the evolving jurisprudence on state responsibility for the actions of private actors, particularly in the context of violence against women.

1. THE FEMICIDES IN CIUDAD JUAREZ: ACTIONS AND INACTIONS OF THE MEXICAN GOVERNMENT

   Ciudad Juarez is a large, sprawling border town that has experienced rapid growth due to increased cross-border trade, massive migration, and the proliferation of maquiladoras--assembly plants mostly owned by American companies that are attracted to the area by low wages and lax labor and environmental regulations. (13) The greater Juarez/El Paso metropolitan area is also one of the largest transit points for illegal drugs and illegal immigrants into the United States, and over the past decade Juarez has experienced a substantial rise in organized crime and gang activities. (14) Juarez's rapid growth has far outpaced social services, has created large areas of destitution, and has substantially disrupted the traditional social fabric. (15)

   Since 1993, over 400 women have been murdered in Juarez (16) and many women have disappeared. (17) Overall, the murder rates for men in Juarez still far exceed those for women. However, the murder rates for women have increased much faster than the murder rates for men in Juarez, and are much higher than in comparable cities. (18) Of the murdered women, approximately 140 were sexually assaulted (19) and a large proportion of these have been labeled "serial killings " (20) because they fit a very specific pattern of rape, mutilation, and killing. Many of the victims were held captive for days and perhaps even months or years, during which they were subjected to brutal torture. (21) Most of the victims were young (approximately eleven to twenty-two years old) (22) and poor. (23) A substantial number (perhaps one-fourth to one-third) worked in the maquiladoras, (24) and many were students. (25) Many of the other murders, labeled situational murders by the Mexican authorities, stem from domestic...