6 2 ATS Litigation
The rise in extraterritorial historical justice litigation cases in the courts of the US was well documented since the 1990’s. This modern litigation began in 1980, when the US Court of Appeal for the Second Circuit decided in the seminal case of Filártiga v Pena-Irala that acts of torture committed among non-US citizens outside of the USA could establish jurisdiction of US federal courts.
The Second Circuit based its decision on the ATS, also referred to as the Alien Tort Claims Act, or ACTA. The ATS was part of the federal Judiciary Act 1789. Today, its original meaning and purpose are uncertain. Indeed, even the ATS itself is short:
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.
The ATS remained almost unutilised for human rights protection until Filártiga. This is not to state that the ATS was redundant; it was used as the basis for a child custody suit between aliens, as well as determining title to slaves on board an enemy vessel taken on the high seas.
The plaintiffs in Filártiga, in using the ATS to bring the alleged torturer in question to justice, opened up the possibility of using the ATS to pursue human rights violations across the world. Since 1980, the ATS has been used by plaintiffs to initiate legal actions against other individuals and in some instances, even states, as perpetrators of human rights violations. Thus the ATS opens up the possibility of pursuing a substantive conception of the rule of law, where all violators of human rights can be brought to justice, and impunity does not reign.
ATS litigation in the US provides one of the few extraterritorial opportunities for natural persons to seek redress for human rights violations. Since 2000, ATS litigation has been brought against Multi-National Companies (MNC’s). This development should not surprise. The laws of the US hold that:
In determining the meaning of any Act of Congress ... the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.
Corporations have also been given rights under the First Amendment, relating to political speech, and the Fourteenth Amendment, guaranteeing equal treatment under the law. Thus such ATS cases against corporations seem to be making a broader point: namely that the ATS does apply to corporations and that if the Supreme Court extends constitutional protections to corporations, then corporations should also have duties, and can be held liable for breaching these. There have been ATS cases brought against corporations for their alleged collusion in crimes against humanity, war crimes and torture.
What has been forwarded by plaintiffs is a substantive conception of the rule of law, incorporating the adherence of basic human rights norms. ATS plaintiffs appear to view the rule of law as protecting against human rights violations. However, this vision has not been uncritically accepted by US courts.
Indeed, the scope and limitation of ATS litigation can be illustrated through its successes and failures. The successful Holocaust litigation cases consisted of the Swiss Gold Bank case and the Nazi Slave Labour case. In the case of In re Holocaust Victim Assets Litigation, a class action was brought against the three large Swiss banks, alleging that they had violated international law by knowingly retaining and concealing the assets of Holocaust victims, accepting and laundering illegally obtained Nazi loot and transacting in the profits of slave labour. The case was never decided in court but led to a $1.25 billion settlement in 1998. This perhaps shows the main impact of the ATS: corporate defendants were driven to settle out of court, instead of risking an adverse judgment at trial. A settlement, whilst not apportioning blame, does at least provide monetary reparations, which of course would be what is awarded in a successful tort claim.
The second case, In re Nazi Era Cases Against German Defendants Litigation, was a class action against German corporations for their alleged complicity in the Holocaust by using slave labour in their production lines during World War II. Again showing the potential of the ATS to lead to reparations for those wronged parties, this highly politicised case ended with a settlement in 1999 when the defendant corporations and the German government agreed to establish a jointly funded $5 billion foundation for compensating the surviving victims of Nazi slave labour.
These successes led many more extraterritorial claims to be filed. These have included the Herero Reparation cases and the still ongoing Apartheid lawsuits. It is these lawsuits which reveal the uncertain future the ATS litigation faces.
Acts of genocide, crimes against humanity as well as slavery were committed by the German Empire against the nations of the Herero, the Great Namaqua, Boschmans and Hill Damaras in its former colony German South West Africa in the late nineteenth and the early twentieth century. These acts were the subject of reparation lawsuits brought before US Federal Courts in 2004. The Hereros sued Deutsche Bank and the Deutsche Afrika-Linien Gmbh & Co shipping line (as the legal successor to the former Woermann Line), for alleged participation in crimes against humanity, genocide, slavery and forced labour.
The plaintiffs failed to convince the Court to recognise US jurisdiction for a private cause of action for violations of customary international law. In short, the ATS was found to be inapplicable. We can see in this judgment a key formal virtue of the rule of law: namely legal certainty. Such a position assumes that to open up US Courts to all potential extraterritorial claims would render the law uncertain and completely indeterminate. There would be no real limiting principle with which to determine claims. Despite this failure, the topic of restitution and rehabilitation for Germany’s colonial crimes remain important to the peoples of Namibia.
The consequences of South African Apartheid are a clear example in showing exactly why the ATS litigation has been favoured by non-US citizens who wish to claim reparations for past wrongs. South Africa established in 1995 the Truth and Reconciliation Commission (TRC) to investigate and record the human rights abuses which occurred under Apartheid. Under certain circumstances, the TRC could grant immunity from prosecutions in the form of individual amnesty. Chaired by former Archbishop Desmond Tutu, the TRC’s main purpose was to contribute to South Africa’s transitional peace building by emphasising reconciliation and rehabilitation over criminal prosecution. One of its declared objectives was to use reparation as a form of moral and legal rehabilitation. This was to be achieved by securing payment of reparations directly to individual victims and/or their relatives through a state-run reparation scheme for the compensation of as many as 22,000 victims. The TRC recommended the establishment of a fund worth R2.8 billion for the payment of final reparations to the victims of apartheid.
Whether the TRC managed to exceed in respect to all expectations set in it will remain open to debate. What remains beyond doubt is the fact that the failure of two consecutive South African governments to implement the TRC’s recommendations regarding individual monetary compensation has undermined the original objective of the TRC to rehabilitate the victims of the days of the Apartheid struggle. The 2011 plan of the government to make provision for the payment of educational assistance and health benefits for the victims of apartheid and their children was regarded by many activist groups as being too superficial and not in the spirit of the TRC’s original aims. Consequently, The Khulumani Support Group of Apartheid Victims called upon President Jacob Zuma to honour the obligation to implement all of TRC’s recommendations.
This failure to implement a proper reparation disbursement policy in a timely fashion failed to close an accountability gap which prepared the way for the later Apartheid litigation cases. In re Apartheid Litigation refers to an ongoing litigation arising from the alleged collaboration of US and international MNC’s with the former South African Apartheid government in committing international human rights violations by aiding and abetting its military and security apparatus.
Originally brought as a class action in 2002, the original lawsuits targeted twenty corporate defendants. Dismissed in 2004 by the US District Court for the Southern District of New York on grounds of lack of subject matter jurisdiction under the ATS, the cases were allowed to proceed on appeal in 2009, albeit against a reduced number of defendants, namely Daimler, Ford, General Motors, IBM and Rheinmetall Group.
The Apartheid cases illustrate the complexity of addressing historical claims and the wider repercussions for states affected. South Africa is the perpetrator state as well as the country of the victims, and also the host state to many corporate defendants and therefore depending on such Foreign Direct Investment. The South African government under former President Mbeki opposed the litigation and filed amicus curiae papers
accordingly. This opposition was withdrawn under President Zuma in 2009, when support for hearing such a case before a US court was made public. Again showing the effect of the ATS, General Motors settled the case in 2012 by compensating 25 plaintiffs.
The South African Apartheid litigation under the ATS has the potential, together with the failed Herero litigation, to serve as an indicator to how successful a future lawsuit against the UK for their concentration camp policy in South Africa could be. However, the ATS litigation which has reached the Supreme Court points to a less optimistic outlook for such extraterritorial claims, based in part upon a formal construction of the rule of law.
Sosa involved a claim by a Mexican citizen against another Mexican citizen for a kidnapping that occurred in Mexico. While accepting that federal courts did have jurisdiction over torts in violation of the “law of nations”, the Court strictly limited the category of offences which were defined by their universal acceptance, their obligatory nature and high degree of specificity. Thus the Court had the rule of law in mind in ensuring certainty of the common law. Indeed this view is reinforced by the fact that the Court contended that a cause of action which satisfies the first three heads can still be non-justiciable if prudential considerations such as public policy weigh in favour of non-justiciability.
This limitation upon ATS litigation could be in the process of being extended. In Kiobel, the question posed was whether corporate civil tort liability under the ATS was justiciable, or whether corporations were immune for tort liability. During oral argument, Justice Alito expressed concern at the very extraterritorial nature of the ATS:
The first sentence in your brief in the statement of the case is really striking: ‘This case was filed ... by twelve Nigerian plaintiffs who alleged ... that respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship ... in Nigeria between 1992 and 1995’. What does a case like that - what business does a case like that have in the courts of the United States?
Justice Alito thus clarifies the Court’s concern in Sosa - why should offences committed abroad be justiciable in American courts? Do prudential considerations (ensuring certainty in the law) disqualify such extraterritorial actions? This concern for key principles of the rule of law led the Supreme Court to order Kiobel to be expanded and reargued. The new question the Court will answer is:
Whether and under what circumstances the Alien Tort Statute, 28 USC § 1350, allows courts to recognise a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.
Thus the potential of extraterritorial historical justice litigation may be curtailed through a concern to secure legal certainty and the rule of law. The future of historical justice litigation may have to focus upon territorial challenges.
6 3 Australia: Native Title, Mabo and Beyond
The Australian response is one which Justice Alito may deem as most suitable for such historical justice litigation: through the State in question allowing such claims, the rule of law, and the legal certainty which forms a part of the rule of law, are maintained.
In Mabo, the High Court of Australia had to decide whether “native title” existed in Australian law, 100 years after Cooper v Stuart denied that such title existed. The High Court faced head on the traditional narrative of Australia: the doctrine of terra nullius. Most interestingly, terra nullius was not mentioned in the first 183 years of Australian jurisprudence, nor mentioned before the Court in oral argument. The first description of Australia as terra nullius occurred in a 1979 case, Coe v Commonwealth. There, the High Court held that Australian sovereignty, founded upon terra nullius, was not justiciable in Australian courts. The High Court in Mabo thus declared that they were faced with a choice. Either they could apply the existing authorities and deny that Aboriginals had rights to land, or overrule those cases.
For Brennan J, delivering the leading judgment, overruling the cases was necessary as otherwise their authority would destroy the equality of
all Australian citizens before the law. Brennan J argues passionately for equality and justice under the law, values buttressing the rule of law. Crucially, Brennan J contended that Mabo presented the Court with a fundamental clash of principles. First was the fact that the dispossession of the Aborigines underwrote the development of the Australian nation. Second, the Court argued that it could not adopt rules if those rules would fracture the skeleton of principle that gives the law its shape and internal consistency - the rule of law.
What is most important here is that terra nullius was treated by the Court as a foundational legal principle, when the reality of Australian colonialism was that it was no such thing. The denial of Aboriginal land rights was not based on a legal doctrine, as Reynolds would have it, but upon the brute assumption that Aboriginals were savages without civilisation. Aboriginals were “physically present, but legally irrelevant”.
Thus the High Court created a conflict in relation to the rule of law. By treating terra nullius as the founding legal doctrine of the Australian legal system which dispossessed Aborigines, they ensured that the rejection of terra nullius would be seen as evidence of the progress of the law. Thus the Court couched its judgment in the language of reconciling the (fictional) foundational act of dispossession with the (fictional) fact that this act was the condition of the ongoing existence of Australia.
The Court distinguished between the acquisition of sovereignty and the consequences of the acquisition of sovereignty. The former, held the Court, is not subject to review by the Court as it is that sovereignty that gives the Court power to rule on the matter at hand. The latter issue was justiciable. From this the Court held that the Crown gained title to Australia through the act of terra nullius; in other words, the Crown gained the right to create property rights but where none had been created it was possible for native title to continue to exist. This right was entrenched in the Native Title Act 1993. In this way, Aboriginal communities could gain land rights if they could show that they had “continual association” with the land from the time of colonisation.
This adherence to the certainty of the legal system, part of the rule of law, was in fact a “symbolic legitimation ritual”. The right to native title is curtailed by the rule of law in a manner different to the legislation in the United States. The formal adherence to the rule of law here involves the application of general principles (“native title”) and treating like cases alike. However, this formal legal equality is tied to the concept of the legal person. Kerruish and Purdy have stated that this means that people are free (stripped) of all their characteristics. Equality at law has this dual freedom: all those who come before the law are equally stripped of their actual characteristics and equally presumed to be responsible for their actions. In the case of Mabo, by assuming that Aboriginals are free actors, the law misdescribes the historical reality of racism and discrimination, but does so in a way that legitimises the overlooking of this fact - namely formal equality under the rule of law. The gains of Mabo were achieved within the supremacy of the liberal, Anglo-American rule of law framework.
What is more concerning for the question of redress for past wrongs, the High Court ruled that the original act of sovereignty was not justifiable in the court system. By refusing to engage with terra nullius, itself a fiction, the court not only legitimises its jurisdiction, but actually legitimises the very act of dispossession that was based upon a colonial racism. As Coe stated, the High Court, in rejecting terra nullius, “threw away a name but retained the substance”. Terra nullius still provides the foundation of the Australian state, meaning that Aboriginal dispossession is now legally set in stone, but is perversely legitimated by the claim that the law is acting in a non-discriminatory manner. Things were changed in order for things to remain the same.