Uncertainty Persists Around Alien Tort Statute.

• Author: Alexander, Laura
• Position: Ethics Corner

As defense contractors pursue an increasing array of opportunities abroad, they must remain mindful of the risks of civil liability and lawsuits brought against them in U.S. courts by foreign victims of human rights abuses.

The Alien Tort Statute, 28 U.S.C. [section] 1350, gives federal courts jurisdiction over "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."

The statute provides a mechanism for foreigners seeking accountability in the United States for violations of international law. The reasoning is that unless the U.S. government provided a path within its own justice system to hold violators of international law accountable, foreign nations might instead hold the United States itself to blame.

The question then is whom does the statute allow to be held accountable? As noted by the U.S. Supreme Court, the wrong answer to this question could transform a law intended to "promote harmony in international relations" into one creating "the very foreign-related tensions that... Congress sought to avoid."

Part of the Judiciary Act of 1789, the Alien Tort Statute remained largely ignored for nearly two centuries before a Second Circuit Court of Appeals case in 1980, Filartiga v. Pena-Irala. The court allowed a Paraguayan family--unable to adequately pursue their case in their own country--to sue a former Paraguayan police official living in New York for allegedly torturing their son to death in Paraguay for opposing that country's government. The Second Circuit held that torture violated the law of nations and could trigger jurisdiction under the Alien Tort Statute.

Over the next two decades, the federal courts grappled with how to interpret the scope of the statute. They looked beyond torture to consider other international law violations, including genocide, summary execution, forced disappearances, terrorism and war crimes. The courts also addressed whom could be sued, as critics became increasingly uncomfortable with suits brought against multinational corporations.

However, it was not until 2004 that the Supreme Court weighed in on the scope of the law. Seeking to rein in an expansive reading of it, which might otherwise allow judges to create a host of new causes of action beyond what Congress had intended, the court held in Sosa v. Alvarez-Machain that the Alien Tort Statute authorized actions for violations of "a very limited category" of universally...