This following case citations link to summaries of several landmark human rights cases in the United States.

ARGENTINE REPUBLIC v. AMERADA HESS SHIPPING CORP. (1989) 488 US 428, 109 S Ct 683

Significance
Any suit against a foreign nation must meet the requirements of the Foreign Sovereign Immunities Act (FSIA) (28 USC §1330). Any actions under the Alien Tort Statute (ATS) (28 USC §1350) must meet these requirements as well.

Fact Summary
The plaintiffs were two Liberian corporations that sued the Argentine Republic for damages to a crude oil tanker. The plaintiffs alleged that the tanker Hercules was in international waters when Argentine warplanes attacked, which was during a war between Argentina and Great Britain over the Falkland Islands.

The U.S. Supreme Court held that any suit in U.S. courts against a foreign nation must meet the jurisdictional requirements of the FSIA, which grants immunity to sovereign states unless an exception within the FSIA applies. The FSIA applies to actions under the ATS.

Quotations

• “We think that the text and structure of the FSIA demonstrate Congress’ intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts.” 488 US at 434.

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BOUMEDIENE v. GEORGE W. BUSH (June 12, 2008, Nos. 06-1195 and 06-1196) 76 USLW 4406, 2008 US Lexis 4887 (U.S. Supreme Court)

Significance
Aliens designated as enemy combatants, detained at the Naval Base at Guantanamo Bay, had the constitutional privilege of a habeas corpus review of their detention and their designations as “enemy combatants.” Some had been detained for six years without trial. The right to habeas corpus cannot be withdrawn except in conformance with the Suspension Clause of the Constitution, art I, §9, which requires a threat to public safety from rebellion or invasion. The procedures under the Detainee Treatment Act (DTA) of 2005 (119 Stat 2739) were not an adequate substitute for habeas corpus.

Fact Summary
The petitioners were aliens held at Guantanamo Bay as alleged enemy combatants. They had been apprehended in various countries, including Afghanistan. Some of the petitioners had been detained more than six years without trial. More than four years had passed since the U.S. Supreme Court’s decision in Rasul v. George W. Bush (2004) 542 US 466, which held that the right to habeas corpus applied to Guantanamo Bay; however, no habeas proceedings had been held.

Following the Rasul decision, Congress passed the DTA, which established limited procedures for review of detainee status, and it further provided that no court had jurisdiction to hear habeas corpus applications from Guantanamo Bay detainees. The Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether detainees were enemy combatants.

In response to Hamdan v. Rumsfeld (2006) 548 US 557, Congress passed the Military Commissions Act of 2006 (MCA) (28 USCA § 2241(e)), which in §7 denied jurisdiction to the courts to hear a habeas application from any detained alien designated as an enemy combatant.

In this case, the U.S. Supreme Court held that, under these “exceptional” facts, petitioners had a constitutional privilege of habeas corpus despite the limiting amendments to statutes, that the Suspension Clause applied to Guantanamo Bay, and that §7 of the MCA was an unconstitutional suspension of the writ of habeas corpus.

Quotations

• “This history was well known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.” 2008 US Lexis 4887 at *35.

• “[T]he specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection.” 2008 US Lexis 4887 at *41.

• “In comparison, the procedural protections afforded to detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a ‘Personal Representative’ to assist him during CSRT proceedings, the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s lawyer or even his ‘advocate.’ . . . The Government’s evidence is accorded a presumption of validity. [Citation.] The detainee is allowed to present ‘reasonably available’ evidence, [citation] but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings.” 2008 US Lexis 4887 at *77–78.

• “The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional.” 2008 US Lexis 4887 at *86.

• “We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law. [Citation.] And the habeas court must have the power to order the conditional release of an individual unlawfully detained — though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.” 2008 US Lexis 4887 at *96–97.

• “When a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing.” 2008 US Lexis 4887 at *103.

• “Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is ‘closed and accusatorial.’ [Citation.] And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.” 2008 US Lexis 4887 at *107–108.

• “By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts, e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. [Citation.] In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record.” 2008 US Lexis 4887 at *116–117.

• “Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.” 2008 US Lexis 4887 at *124.

• “Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” 2008 US Lexis 4887 at *127.

• “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” 2008 US Lexis 4887 at *129.

From the Roberts dissent:

• “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation.” 2008 US Lexis 4887 at *134.

From the Scalia dissent:

•  “Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of power principles to establish a manipulable ‘functional’ test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

• “The Nation will live to regret what the Court has done today.” 2008 US Lexis 4887 at *216–217.

 Related cases include:

• Rasul v. George W. Bush (2004) 542 US 466 (federal district courts have jurisdiction to hear statutory habeas corpus petitions of alien detainees at the Naval Base at Guantanamo Bay even though the base is not a part of the territorial United States, under then-existing law 28 USCS §2241).

• Hamdi v. Donald H. Rumsfeld (2004) 542 US 507 (American citizen captured in Afghanistan was accused of aiding the Taliban; being detained in the United States, the accused had the right to seek habeas corpus review to contest designation as “enemy combatant”).

• Hamdan v. Rumsfeld (2006) 548 US 557 (the DTA does not apply to cases that were pending when it was enacted).

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FILARTIGA V. PENA-IRALA (2d Cir 1980) 630 F2d 876

Significance
Filartiga was the first case to apply the Alien Tort Statute (ATS) (28 USC §1350), enacted in 1789, to a human rights violation that occurred in another country and to permit that case to proceed in a U.S. district court. Official torture in a foreign country violates established international norms, and it is actionable in the U.S. district courts, if personal jurisdiction has been obtained over the defendant.

Fact Summary
The family of Joelito Filartiga brought suit against defendant Pena for the death of their son and brother. The complaint alleged that Pena, while acting as inspector general of police in Ascuncion, Paraguay, kidnapped Joelito and tortured him to death, allegedly in retaliation for Joelito’s father’s political activities against the government. After Pena relocated to the United States, the plaintiffs discovered his presence. He was arrested and served with a civil summons and complaint. Defendant Pena challenged whether the ATS could provide jurisdiction in the United States for conduct that occurred in Paraguay.

The Court of Appeals held that torture clearly violated international law, the “law of nations.” It held that the ATS was constitutional and that it opened the federal courts to “adjudication of the rights already recognized by international law.” 630 F2d at 887.

Quotations

• “[W]e hold that deliberate torture perpetuated under color of official authority violates accepted norms of the international law of human rights, regardless of the nationality of the parties.” 630 F2d at 878.

• “While the ultimate scope of those rights will be a subject for continuing refinement and elaboration, we hold that the right to be free from torture is now among them.” 630 F2d at 885.

• “The law of nations forms an integral part of the common law, and a review of the history surrounding the adoption of the Constitution demonstrates that it became a part of the common law of the United States upon the adoption of the Constitution. Therefore, the enactment of the Alien Tort Statute was authorized by Article III.” 630 F2d at 886.

• “It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute.” 630 F2d at 888.

• “Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.” 630 F2d at 890.

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FORTI V. SUAREZ MASON (FORTI I) (ND Cal 1987) 672 F Supp 1531

Significance
Claims for the “international torts” of (1) official torture, (2) prolonged arbitrary detention, and (3) summary execution were deemed “universal, definable, and obligatory international norms” that could be asserted in the district court under the Alien Tort Statute (ATS) (28 USC §1350). Claims for “causing disappearance” and “cruel, inhuman and degrading treatment” did not meet the requirements for established international torts.

Fact Summary
Argentine citizens living in the United States sued a former Argentine general for acts allegedly committed during the “dirty war” against terrorists and subversives, which the Argentine government conducted during the mid-to-late 1970s. Plaintiffs alleged the acts were done by military and police personnel under the defendant’s authority and control, as a “policy, pattern and practice” (672 F Supp at 1537), and that the acts violated Argentine law at the time.

The court held that subject matter jurisdiction under the ATS requires that “international torts” must be “universal, definable, and obligatory international norms.” 672 F Supp at 1540. The plaintiffs’ claims for (1) official torture, (2) prolonged arbitrary detention, and (3) summary execution met that standard; but claims for “causing disappearance” and “cruel, inhuman and degrading treatment” did not. (But see Forti II, in which, after hearing further evidence on reconsideration, the court held that a claim for causing disappearance was an established international tort.)

The “Act of State Doctrine” did not clearly bar these claims at the stage when a motion to dismiss was heard. The acts, allegedly carried out by a subordinate government official, concerned fundamental human rights, and it was unclear to what extent the acts were ratified by the government. The plaintiffs alleged the acts were illegal under Argentine law at the time.

Quotations

• “Plaintiffs must plead a violation of the law of nations as it has evolved and exists in its contemporary form.” 672 F Supp at 1539.

• “These international torts, violations of current customary international law, are characterized by universal consensus in the international community as to their binding status and their content. That is, they are universal, definable, and obligatory international norms.” 672 F Supp at 1540.

• “The court has no doubt that official torture constitutes a cognizable violation of the law of nations under § 1350. . . . Of course, purely private torture will not normally implicate the law of nations, since there is currently no international consensus regarding torture practiced by non-state actors.” 672 F Supp at 1541.

• “The consensus is even clearer in the case of a state’s prolonged arbitrary detention of its own citizens. [Citation.] The norm is obligatory, and is readily definable in terms of the arbitrary character of the detention.” 672 F Supp at 1541–1542.

• “The proscription of summary execution or murder by the state appears to be universal, is readily definable, and is of course obligatory. The Court emphasizes that plaintiff’s allegations raise no issue as to whether or not the execution was within the lawful exercise of state power; rather, she alleges murder by state officials with neither authorization nor recourse to any process of law.” 672 F Supp at 1542.

• “Plaintiffs do not cite, and the Court is not aware of, such evidence of universal consensus regarding the right to be free from ‘cruel, inhuman and degrading treatment as exists, for example, with respect to official torture.’ Further, any such right poses problems of definability.” 672 F Supp at 1543.

• “It has long been settled that federal common law incorporates international law. [Citations.] More recently, the Supreme Court has held that the interpretation of international law is a federal question.”672 F Supp at 1544.

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FORTI V. SUAREZ MASON (FORTI II) (ND Cal 1988) 694 F Supp 707

Significance
The international tort of “causing disappearance” is now a “universal, definable, and obligatory international norm”; it is therefore actionable under the Alien Tort Statute (ATS) (28 USC §1350).

A universal, definable, and obligatory international norm is shown when there is a “general recognition” that a practice is prohibited: unanimity among nations is unnecessary.

Fact Summary
Argentine citizens living in the United States sued a former Argentine general for acts allegedly committed during the “dirty war” of the mid-to-late 1970s. In Forti I, the federal district court held that the tort of “causing disappearance” was not actionable under the ATS because it had not yet achieved the status of a “universal, definable, and obligatory international norm.” Upon a motion for reconsideration, and after reviewing declarations from several experts on international law, the district court held in Forti II that the tort of causing disappearance has the status of an established international norm.

Quotations

• “[T]he Court interprets the Alien Tort Statute as providing a cause of action for ‘international torts.’ [Citation.] The plaintiff’s burden in stating a claim is to establish the existence of a ‘universal, definable, and obligatory international norm[].’ [Citation.] To meet this burden plaintiffs need not establish unanimity among nations. Rather, they must show a general recognition among states that a specific practice is prohibited.” 694 F Supp at 709.

• “In the Court’s view, the submitted materials are sufficient to establish the existence of a universal and obligatory international proscription of the tort of ‘causing disappearance.’ This tort is characterized by the following two essential elements: (1) abduction by state officials or their agents; followed by (2) official refusals to acknowledge the abduction or to disclose the detainee’s fate.” 694 F Supp at 711.

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HILAO v. ESTATE OF FERDINAND MARCOS (9th Cir 1996) 103 F3d 767 [Class Action]

Significance
A leader can be held liable for the human rights violations of his subordinates under the principle of “command responsibility.”

Proof of damages for 9,541 human rights claimants was properly conducted by use of statistical sampling and a special claims master who reviewed the claims and then presented his evaluations to the jury. The claims involved torture, summary execution, and “disappearance.”
This was a class action.

Fact Summary
A class action was brought on behalf of approximately 10,000 victims of the regime of Ferdinand E. Marcos, former president of the Philippines. Causes of action sued upon included the Alien Tort Claims Act (ATCA) (28 USC §1350) and the Torture Victim Protection Act (TVPA) (28 USC §1350).

The class was defined as: “All current civilian citizens of the Republic of the Philippines, their heirs and beneficiaries, who between 1972 and 1986 were tortured, summarily executed or disappeared while in the custody of the military or paramilitary groups.” 103 F3d at 774.
Class members were required to file a proof-of-claim form to opt into the class. More than 10,000 claim forms were filed, of which the court disallowed approximately 500 as invalid on their face.

The trial was trifurcated into (1) liability, (2) exemplary damages, and (3) compensatory damages.

Under the TVPA, the defendant has the burden of showing that the plaintiff has failed to exhaust any “adequate and available remedies” in the foreign country. For a higher official to be liable under the TVPA, they need not have personally performed or ordered the abuses: they are liable if they “authorized, tolerated or knowingly ignored the conduct.”

Under the principle of “command responsibility,” the jury found Marcos liable “for any act of torture, summary execution, or ‘disappearance’ committed by the military or paramilitary forces on his orders or with his knowledge.” 103 F3d at 774.

The Court of Appeals concluded that the trial court used an “unorthodox” approach to valuing the 9,541 serious tort claims during the compensation phase of trial, which raised “serious questions” of due process. However, the majority of the Ninth Circuit panel approved the methods because of the “extraordinarily unusual nature of this case.” 103 F3d at 786. The Court of Appeals concluded that the alternative, a trial of nearly 10,000 claims, would be “impossible.” Id. It noted the trial court’s approach had been used previously by a district court in an asbestos class action, Cimino v. Raymark Indus., Inc. (ED Tex 1990)751 F Supp 649, 659–667.

The trial court took the following approach to valuing the claims:

1. The torts were divided into three subclasses: torture, summary execution, and “disappearance.”
2. An expert statistician provided an opinion that a random sample of 137 people, composed of the three subclasses, was needed to achieve a 95 percent statistical probability under the standards of inferential statistics. From a random sampling list, 137 people were located and selected.
3. The court appointed a special master to supervise the depositions of the 137 claimants and their witnesses. The depositions were taken in the Philippines during a period of two months. The Estate of Marcos chose not to participate in the depositions.
4. The special master reviewed the claim forms, which were submitted under penalty of perjury, evaluating three criteria the court had provided (at 103 F3d at 782):
   
   (1) whether the abuse claimed came within one of the definitions, with which the Court charged the jury at the trial . . ., of torture, summary execution, or disappearance; (2) whether the Philippine military or paramilitary was . . . involved in such abuse; and (3) whether the abuse occurred during the period of September 1972 through February 1986.
   
   The special master recommended disallowing six of the claims in the sample of 137.


5. After review of the transcripts of the depositions, the special master recommended amounts of damages for each of the 131 claims he felt were valid. He considered Philippine, international, and American law on damages. He evaluated several factors for each subclass of injury. He also recommended that a ceiling be placed on both lost wages and pain and suffering, which the jury followed. His average recommendations were as follows: for torture claims, $51,719; for summary execution, $128,515; and for “disappearance,” $107,853.
6. Using the values for the 131 claims, and after applying a 5 percent adjustment for invalidity, the special master then recommended awards for all members of each subclass, based on averages. He recommended a total class award of $767,491,493.
7. Both the statistician and the special master then testified before the jury during the compensation phase of the trial. The jury accepted most, but not all, of the special master’s recommendations.

The jury awarded more than $766 million in compensatory damages and $1.2 billion in exemplary damages.

Quotations

• “We need not decide which statute of limitations applies because Hilao’s suit was timely under any of the proposed statutes when equitable tolling principles are applied.” 103 F3d at 773.

• “As discussed above, however, the Senate Report makes clear that in enacting the TVPA, Congress intended to impose exactly the type of liability that the jury instructions allowed in this case:

‘[A] higher official need not have personally performed or ordered the abuses in order to be held liable. Responsibility for torture, summary execution, or disappearance extends beyond the person who actually committed those acts — anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.’”

103 F3d at 779.

• “Schreiber then recommended the amount of damages to be awarded to the 131 claimants. Following the decision in Filartiga v. Pena-Irala 577 F. Supp. 860, 863 (E.D.N.Y. 1984), he applied Philippine, international, and American law on damages.
  
  In the cases of torture victims, Schreiber considered:

(1) physical torture, including what methods were used and/or abuses were suffered; (2) mental abuse, including fright and anguish; (3) amount of time torture lasted; (4) length of detention, if any; (5) physical and/or mental injuries; (6) victim’s age; and (7) actual losses, including medical bills.

“In the cases of summary execution and ‘disappearance’, the master considered

(1) [the presence or absence of] torture prior to the death or disappearance; (2) the actual killing or disappearance; . . . (3) the victim’s family’s mental anguish[;] and (4) lost earnings [computed according to a formula established by the Philippine Supreme Court and converted into U.S. dollars].” (Bracketed comments in original.)


103 F3d at 783.

• “Finally, the Estate appears to assert that the method violated its right to due process because ‘individual questions apply to each subset of claims, i.e., whether the action was justified, the degree of injury, proximate cause, etc.’ . . . The jury had already determined that Philippine military or paramilitary forces on Marcos’ orders — or with his conspiracy or assistance or with his knowledge and failure to act — had tortured, summarily executed, or ‘disappeared’ untold numbers of victims and that the Estate was liable to them or their survivors. The only questions involved in determining the validity of the class members’ claims were whether or not the human-rights abuses they claim to have suffered were proven by sufficient evidence. “Although poorly presented, the Estate’s due-process claim does raise serious questions. Indeed, at least one circuit court has expressed ‘profound disquiet’ in somewhat similar circumstances. In re Fibreboard Corp., 893 F. 2d 706, 710 (5th Cir. 1990).”
  103 F3d at 785.

• “On the other hand, the time and judicial resources required to try the nearly 10,000 claims in this case would alone make resolution of Hilao’s claim impossible. See Cimino, 751 F. Supp. at 652–53(‘If the Court could somehow close thirty cases a month, it would take six and one-half years to try these [2,298] cases . . . ’). The similarity in the injuries suffered by many of the class members would make such an effort, even if it could be undertaken, especially wasteful, as would the fact that the district court found early on that the damages suffered by the class members likely exceed the total known assets of the Estate.
  “While the district court’s methodology in determining valid claims is unorthodox, it can be justified by the extraordinarily unusual nature of this case. ‘ “Due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria Works v. McElroy, 367 U.S. 886, 895 . . . (1961).”
  103 F3d at 786.

• “The statistical method used by the district court obviously presents a somewhat greater risk of error in comparison to an adversarial adjudication of each claim, since the former method requires a probabilistic prediction (albeit an extremely accurate one) of how many of the total claims are invalid.15 The risk in this case was reduced, though, by the fact that the proof-of-claim form that the district court required each class member to submit in order to opt-into the class required the claimant to certify under penalty of perjury that the information was true and correct. Hilao’s interest in the use of the statistical method, on the other hand, is enormous, since adversarial resolution of each class member’s claim would pose insurmountable practical hurdles. The ‘ancillary’ interest of the judiciary in the procedure is obviously also substantial, since 9,541 individual adversarial determinations of claim validity would clog the docket of the district court for years. Under the balancing test set forth in Mathews and Doehr, the procedure used by the district court did not violate due process.
  “15 Hilao suggests that this risk is balanced in part by other benefits the Estate received from the district court’s method, including the plaintiffs’ decision to forgo certain damages (e.g., costs of medical treatment) that would not be ‘generic to the class members’ and the special master’s recommendation (followed by the jury) of a ceiling on damages for both lost wages and pain and suffering.” 103 F3d at 786–787.

From the Partial Dissent:

• “This leaves me ‘with a profound disquiet’ as Judge Higginbotham put it in In re Fibreboard Corp., 893 F. 2d 706, 710 (5th Cir. 1990). Although I cannot point to any authority that says so, I cannot believethat a summary review of transcripts of a selected sample of victims who were able to be deposed for the purpose of inferring the type of abuse, by whom it was inflicted, and the amount of damages proximately caused thereby, comports with fundamental notions of due process.” 103 F3d at 788.

• “There is little question that Marcos caused tremendous harm to many people, but the question is which people, and how much. That, I think, is a question on which the defendant has a right to due process. If due process in the form of a real prove-up of causation and damages cannot be accomplished because the class is too big or to do so would take too long, then (as the Estate contends) the class is unmanageable and should not have been certified in the first place. As Judge Becker recently wrote for the Third Circuit in declining to certify a 250,000-member class in an asbestos action: ‘Every decade presents a few great cases that force the judicial system to choose between forging a solution to a major social problem on the one hand, and preserving its institutional values on the other. This is such a case.’ Georgine v. Amchem Prod., Inc., 83 F. 3d 610, 617 (3d Cir. 1996).
  “So is this. I think that due process dictates the choice: a real trial.”

103 F3d at 788–789.

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IN RE ESTATE OF MARCOS HUMAN RIGHTS LITIGATION (9th Cir 1994) 25 F3d 1467 [Class Action]

Significance
The Foreign Sovereign Immunities Act (FSIA) (28 USC §1330) does not shield individual conduct by a former dictator if his acts violated the law of his country. The individual is the head of the state, not the state itself. A dictator’s illegal acts are not “official acts.”
Actionable international torts under the Alien Tort Statute (ATS) (28 USC §1350) must violate a norm that is specific, universal, and obligatory.

In a suit seeking damages, a trial court may issue a preliminary injunction to prevent a defendant from secreting assets pending litigation.
This was a class action.

Fact Summary
This was a class action brought against Ferdinand Marcos, ex-president of the Philippines, and other persons. The complaint alleged that approximately 10,000 persons were tortured, summarily executed, had disappeared, or suffered other violence from acts by military intelligence personnel acting under the authority of Marcos and his collaborators.

Marcos and his family fled to Hawaii. Various civil actions were filed and consolidated in Hawaii. Marcos died, and his estate assumed the defense of the litigation.

A class was certified, and the case proceeded to trial. At the time the opinion issued, the jury had awarded $1.2 billion in exemplary damages and was to reconvene to decide compensatory damages.

The Court of Appeals held that the FSIA does not protect individual acts of a former dictator that violate the law existing at the time the acts occurred.
The court also held that an actionable international tort must violate a norm that is specific, universal, and obligatory.

The trial court had issued a preliminary injunction preventing defendants from transferring, secreting, or dissipating assets while litigation was pending. The Court of Appeals held that the injunction was proper in a case for damages.

Quotations

• “[W]e have previously rejected the Estate’s argument that FSIA immunizes alleged acts of torture and execution by a foreign official. . . .
  
  “Where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do.”
  25 F3d at 1470.

• “Although sometimes criticized as a ruler and at times invested with extraordinary powers, Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He was not the state, but the head of the state, bound by the laws that applied to him. Our courts have had no difficulty in distinguishing the legal acts of a deposed ruler from his acts for personal profit that lack a basis in law. As in the case of the deposed Venezuelan ruler, Marcos Perez Jimenez, the latter acts are as adjudicable and redressable as would be a director’s act of rape.” 25 F3d at 1471.

• “In citing Jimenez with approval, we adopted its conclusion that the illegal acts of a dictator are not ‘official acts’ unreviewable by federal courts.” 25 F3d at 1471.

• “We thus join the Second Circuit in concluding that the Alien Tort Act, 28 U.S.C. § 1350, creates a cause of action for violations of specific, universal and obligatory international human rights standards which ‘confer[] fundamental rights upon all people vis-a-vis their own governments.’ Filartiga, 630 F.2d at 885–887.” 25 F3d at 1475.

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PRESBYTERIAN CHURCH OF SUDAN v. TALISMAN ENERGY (SD NY 2005) 374 F Supp 2d 331

Significance
A corporation can be liable under international law for its activities in other countries. The liability can be both direct or can be secondary under theories such as conspiracy and aiding and abetting.

Fact Summary
Plaintiffs were current and former residents of southern Sudan, who alleged they were victims of genocide, crimes against humanity, and other violations of international law, perpetrated by Talisman Energy, a Canadian company, and the government of Sudan. Defendant Talisman challenged whether a corporation could be liable under international law. The court found that international law recognizes corporate liability under theories of both direct and secondary liability. The court followed the opinion from 2003 in the same litigation.

Quotations

• “In the 2003 Opinion, the Honorable Allen G. Schwartz held, among other things, that corporations may be held liable under international law for violations of jus cognens norms, Presbyterian Church, 244 F. Supp. 2d at 319, and that international law recognizes theories of liability such as conspiracy and aiding and abetting (collectively, ‘secondary liability’), id. at 321–22.” 374 F Supp 2d at 333.

• “As the 2003 Opinion explained, jus cognens norms are peremptory norms, and their violation constitutes an offense of ‘universal concern.’ Presbyterian Church, 244 F. Supp. 2d at 306. Jus cognens norms include the prohibition on genocide, torture, slavery, crimes against humanity, and extrajudicial killing.” 374 F Supp 2d at 334.

• “Regarding international law’s recognition of theories of liability such as conspiracy and aiding and abetting, the 2003 Opinion cited International Military Tribunal decisions from Nuremberg, id. at 322, international criminal statutes,5 id. at 322–23, international treaties,6 id. at 323, and decisions of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, id. at 323–24.” 374 F Supp 2d at 334.

• “The Supreme Court also has not endorsed Talisman’s view. In fact, the case to which Talisman turns for its argument regarding the level of international consensus required for a customary international norm explicitly contemplates the existence of corporate liability under customary international law. Alvarez-Machain, 124 S. Ct. at 2766 n. 20. The Alvarez-Machain Court described the need to consider whether the violation of a ‘given norm’ incurs international legal liability ‘if the defendant is a private actor such as a corporation.’ Id. (emphasis supplied).” 374 F Supp 2d at 335.

• “In the context of torture and genocide, courts around the world have acknowledged that it is not necessary for any given State to provide a domestic civil or criminal remedy for torture or genocide for the prohibitions on torture and genocide to retain their status as peremptory norms of international law.” 374 F Supp 2d at 336.

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SOSA V. ALVAREZ-MACHAIN (2004) 542 US 692, 124 S Ct 2739

Significance
The Alien Tort Statute (ATS) (28 USC §1350) is a jurisdictional statute that does not create any new causes of action. However, under the common law, a claim can be brought under the ATS for violation of a limited number of well-defined norms of international law.

Fact Summary
Humberto Alvarez-Machain (Alvarez), a Mexican national, was suspected of participating in the torture and murder of Enrique Camarena-Salazar, an agent of the Drug Enforcement Administration (DEA). Unable to secure extradition from the Mexican government, the DEA approved a plan to have Alvarez kidnapped in Mexico and transported to Texas by private plane, where he was arrested. Alvarez was tried for torture and murder, and he was acquitted. He then filed suit against Sosa and others involved in the abduction.

The Supreme Court held that Alvarez did not state a claim under the ATS. While the ATS is a jurisdictional statute and does not create new causes of action, it does permit actions to be brought for violations of international law. Alvarez’s one-day illegal detention, followed by his turnover to lawful authorities and a prompt arraignment, did not state a sufficient claim for violation of international law. An ATS claim based upon the present-day law of nations must be based upon a well-defined and specific international norm.

Quotations

• “Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” 542 US at 712.

• “Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” 542 US at 725.

• “These reasons argue for great caution in adapting the law of nations to private rights.” 542 US at 728.

• “Whereas Justice Scalia sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us 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.” 542 US at 729.

• “Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350, we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 US at 732.

• “Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require. Creating a private cause of action to further that aspiration would go beyond any residual common law discretion we think it appropriate to exercise. It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” 542 US at 738.

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