The Alien Tort Statute and the Syrian Crisis

Anonymous, Vol. 36 Associate Editor

Syria’s President Bashar Assad has engaged in a civil war with Syrian citizens since March 2011.[i] As the revolution-turned-bloodbath enters its fifth year, the estimated death toll has reached 220,000 and continues to rise.[ii] The conflict has also displaced a significant percentage of the country’s pre-war population. The United Nations High Commissioner for Refugees estimates that there are 3.8 million Syrian refugees who are now registered in Jordan, Lebanon and Turkey. [iii] Yet, Assad regime forces have only been more aggressive in their indiscriminate shelling of residential areas and their use of internationally prohibited barrel bombs against both civilians and rebel fighters.[iv] The relevant international forums have failed to hold the perpetrators accountable for their crimes. At the U.N. Security Council, Russia and China have continuously blocked any resolution that would allow investigation of war crimes or hold the Assad regime accountable for any possible war crimes. [v] Specifically, the regime’s allies blocked a referral of Syrian President Assad to the International Criminal Court (ICC) which would seek to hold him accountable for war crimes. [vi] What the victims need is a neutral forum in which to adjudicate their claims, especially since no claim is available to them in Syria. Unfortunately, the international community has not been able to hold accountable those involved in human rights violations and crimes against innocent civilians. In fact, many reputable aid agencies have said that the international community, and more specifically the U.N. Security Council, has failed the Syrian victims. [vii] Since there appears to be no meaningful remedy available elsewhere, the Syrian victims might be able bring a claim in U.S. federal district courts using the Alien Tort Statute (ATS). The ATS provides U.S. federal district courts with original 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.”[viii] A claim brought under ATS would provide a more favorable forum in which to litigate their case and seek redress for severe human rights violations. In light of the Supreme Court’s most recent ATS holding in Kiobel v. Royal Dutch Petroleum Co., the question becomes under what circumstances does the ATS allow federal district courts to recognize a cause of action for a “violation of the law of nations” when the action itself occurred on foreign soil?[ix] The Second Circuit in Filartiga v. Pena-Irala opened the ATS floodgates to foreign citizens suing in U.S. district courts for human rights violations that took place in a foreign jurisdiction. [x] In the Filartiga case, a citizen of Paraguay brought suit in the Eastern District of New York against a Paraguayan state official who tortured and killed Filartiga’s son to death.[xi] All the relevant conduct, including the abduction, torture and death of his son, occurred in Paraguay. [xii] The Second Circuit nonetheless held for the non-citizen victims. It found that “in light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world . . . an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.”[xiii] This reasoning is quite unlike that found in Kiobel, which seems to significantly restrict the scope of the ATS. In Kiobel, a group of Nigerian citizens brought suit in the U.S. District Court for the Southern District of New York against foreign oil companies for allegedly aiding and abetting the Nigerian government in the torture and execution of activists protesting the environmental damages in the Ogoni region throughout the early 1990’s. [xiv] In Kiobel, the Court unanimously dismissed the plaintiff’s claims concluding that the general presumption against extraterritorial application of U.S. statutes precluded the exercise of ATS jurisdiction. [xv] The Court wrote, “on these facts all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” [xvi] The Court’s decision seems to imply that the ATS will not apply outside of United State’s borders, unless Congress decides otherwise.[xvii] However, previous ATS case law and the history of the statute seem to indicate that the ATS is not territorially limited. Traditionally, when the ATS was passed, there were three principal offenses against the law of nations. Those included: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” [xviii]Since piracy is one of the offenses actionable under the ATS, this appears to be a clear indication of Congress’s purpose that the ATS reach beyond U.S. soil. [xix] It seems unlikely after Kiobel that the ATS can be used as a weapon going forward to hold Syrian regime officials liable under international law in U.S. federal courts. The majority in Kiobel cited diplomatic risks as another reason to limit ATS jurisdiction.[xx] However, ATS claims brought by Syrian victims may actually advance U.S. international interests by punishing the world’s most serious human rights violations especially because efforts at local justice in Syria have proven futile.

[i] Michael Pizzi, After Four Years of Syria’s War, No End in Sight, Al-Jazeera, Mar. 12, 2015, available at http://america.aljazeera.com/articles/2015/3/13/after-four-years-of-syrias-war-no-end-in-sight.html. [ii] Id. [iii] Somini Sengupta, U.N. Official Seeks Havens for Syrians, N.Y. Times, Feb. 26, 2015, available at http://www.nytimes.com/2015/02/27/world/middleeast/united-nations-official-seeks-havens-for-syrians.html?action=click&contentCollection=Middle%20East&module=RelatedCoverage&region=Marginalia&pgtype=article. [iv] Pizzi, supra note 1. [v] Russia, China block Syria from facing International Criminal Court, CNN, May 23, 2014, available at http://edition.cnn.com/2014/05/22/world/syria-un/. [vi] Id. [vii] Syria Crisis: UN Security Council ‘Failing Victims’, BBC, Mar. 12, 2015, available at http://www.bbc.com/news/world-middle-east-31839947. [viii] 28 U.S.C. §1350. [ix] Kiobel v. Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013). [x] Filartiga v. Pena-Irala 630 F.2d 876 (1980). [xi] Id. at 878. [xii] Id. [xiii] Id. at 880. [xiv] Kiobel at 1663. [xv] Id. at 1669. [xvi] Id. [xvii] Id. [xviii] Sosa v. Alvarez-Machain 542 U.S. 692, 724 (2004). [xix] Kiobel at 1672 (Breyer, J., dissenting). [xx] Id. at 1670.