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Tuesday, March 6, 2012

Kiobel Do-over: Will the Torturer Remain Hostis Humani Generis?

Yesterday the Supreme Court issued a one-page order that directed the Kiobel case returned to the calendar for re-argument next term and also ordered the parties to brief a new question: whether the Alien Tort Statute permits an alien to sue in U.S. federal court for crimes committed in the territory of another sovereign.

When the Kiobel case was originally argued last week, the lawyers thought they were arguing about whether corporations can be responsible, under international law, for human rights abuses, or whether the corporate liability question is governed by U.S. domestic law even in ATS cases. 

As it happens, though, the justices were more intent on asking about the exterritorial application of the ATS to torts committed outside of the United States.  The lawyers were taken a bit by surprise, and the issue was not explicitly briefed by the parties.  Everyone assumed that the extraterritorial reach of the ATS was an underlying assumption of the debate.  Most litigants, ever since Filartiga, have assumed that the ATS had extraterritorial reach – and that was the entire point of ATS litigation.

The briefing and second-round oral argument will presumably center around the presumption against extra-territorial application of U.S. statutes, something that Anthony Colangelo has recently written about.  (Colangelo concludes that the relevant presumption as to the ATS ought to be Charming Betsy, not the Morrison presumption against extra-territoriality).  Although it might seem like the Court is backtracking a bit, the only Supreme Court case directly on point is Sosa v. Alvarez-Machain, which had a strong connection to the U.S. since the kidnapping scheme, although executed in Mexico, was formulated and completed here.

And as others have already noted, the language of the re-argument order is interesting.  The court specifically wants the parties to address the applicability of the ATS for torts committed in other countries – not torts committed outside the United States.  The difference is subtle, but piracy is committed outside the U.S. but not within another country; it happens in international waters.  At least some members of the Court apparently want to concede that the ATS covers piracy outside of the U.S., but not torts committed within another sovereign jurisdiction.

Human rights litigators are worried that this case is turning ought far worse than they ever imagined.  The went into Kiobel worried that corporate aiding and abetting cases – the best cases – would be curtailed once corporations were deemed immune from suit under the ATS.  But if the rehearing order is any indication, what’s at stake now is the entirely of Filartiga-style ATS litigation. 

If the ATS does not have extraterritorial reach, one wonders whether the torturer can still be, in the words of Judge Kaufman, the hostis humani generis – the enemy of all mankind.  I guess they could still be an enemy -- just not a litigant here.


Lena Harris said...

The Kiobel case is one of the most controversial legal cases in recent history that tackles international human rights law. I believe that the Royal Dutch/Shell should be held liable and punishable in this class action and be branded as hostis humani generis.

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