Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel

Abstract

For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts with civil jurisdiction over human rights abuses committed abroad and a small group of victims a modest measure of justice. The Supreme Court’s April 2013 decision to limit the extraterritorial reach of the ATS in Kiobel v. Royal Dutch Petroleum prompted declarations from experts that human rights litigation in the United States is dead. This view overstates the value of ATS litigation to human rights victims and ignores the availability of other legal strategies. This Article explores the implications of Kiobel for the interests of those most affected by human rights violations—its victims—and identifies strategies for how advocates can best use existing legal remedies in the United States to vindicate victims’ rights. First, the Article defines a metric to evaluate the significance of U.S. legal strategies from a victim-centered perspective. The metric is based on international standards related to victims’ rights: the rights to truth, justice, and reparations. Second, the Article catalogues the multiple legal strategies available in the United States to hold perpetrators accountable for human rights abuses committed abroad. Even after the Supreme Court’s holding in Kiobel, the United States remains the only country in the world where a nonnational victim can bring a civil action against a nonnational perpetrator for human rights abuses committed on foreign soil. U.S. courts also have extraterritorial jurisdiction