Alien Tort Statute Research Articles

Lessons from Kiobel V Royal Dutch Petroleum Company: Developing Homegrown Lawyering Strategies Around Corporate Accountability

In April 2013, the United States Supreme Court handed down the long-awaited judgment in Kiobel v Royal Dutch Petroleum Company, a case alleging corporate exploitation of communities in an oil-rich area of Nigeria. The case examined the Alien Tort Statute (ATS), an old statute allowing non-US citizens to bring claims in US courts for violations of the law of nations. In its judgment, the court limited the application of the ATS.This article explores the holding and reasoning of Kiobel in light of previous ATS jurisprudence, and set against the geopolitical considerations of international human rights frameworks within the US, with a particular focus on what this case means for South Africa and the region. The article queries the continuing need for countries in the Global South, including South Africa, to rely on foreign courts for corporate accountability, particularly given robust domestic legal frameworks that are under-utilised. South Africa, in particular, is best placed to begin the regional dialogue regarding law reform and corporate accountability. Local lawyers and law students must be encouraged to develop creative lawyering strategies in the area of corporate accountability. Finally, the article highlights the need to support communities and individuals most affected by corporate abuse to construct and share their narratives as part of their broader quest for meaningful political and economic justice.

The Implications of the Kiobel v. Royal Dutch Petroleum Case for the Exercise of Extraterritorial Jurisdiction

In the last few decades the Alien Tort Statute has proven a useful tool in the struggle to impose legal obligations on transnational corporations conducting their activities in developing countries. However, its usefulness has recently been significantly reduced, as its application to conduct occurring outside of the United States has been seriously challenged by the Supreme Court decision in the Kiobel case. This decision was founded on the basis of the presumption against extraterritoriality; a U.S. law provision which entails that domestic legislation does not normally apply outside of the United States' territory. This article argues that the principles of international law, rather than the presumption against extraterritoriality, would have constituted better guidance for assessing the legitimacy of the exercise of extraterritorial jurisdiction. It contends that based on these principles, the exercise of extraterritorial civil jurisdiction is legitimate when the alleged perpetrator is an American national. In addition, even where both parties are foreign, universal civil jurisdiction can be legitimately exercised when the alleged perpetrator is present on U.S. territory, provided it is limited to the same category of particularly heinous crimes of universal concern as those giving rise to universal criminal jurisdiction.

The Competitive Advantage of Corporate Criminal Responsibility for International Crimes: Atrocity, Commerce, and Accountability after Kiobel

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. Since then, the American fiction that corporations are people for the purposes of criminal law has taken hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case.In this paper, I argue that coupling corporate criminal liability with international crimes in national systems, as in this new Swiss case, is the next obvious “discovery” in corporate responsibility. In addition, at least one international court has now adopted corporate criminal liability for international crimes. These moves promise to transcend several of the doctrinal and conceptual problems that plagued the ATS. First, this reframing will move this field beyond polarized debates about the scope of complicity within ATS litigation, which did not fully capture the nuanced meaning of accomplice liability in the criminal law. Second, it will bypass the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which would not arise in criminal trials. Third, while trading the private right to sue under the ATS for prosecutorial discretion in a criminal context is certainly a massive loss, prosecutorial discretion also has its upsides, which we should now explore in greater depth. Finally, reframing ATS cases in international criminal law (principally enforced in national courts) offers corporate guilt and retribution as a justification for accountability, thereby answering many of the criticisms scholars leveled against the ATS process. Corporate criminal liability (in conjunction with individual criminal responsibility of corporate officers for international crimes) always had certain competitive advantages over the ATS, that the Swiss investigation confirms as legally plausible. So, regardless of whether this particular investigation ever results in a trial or conviction, it announces an uncharted set of relationships between commerce, atrocity and international criminal law waiting to be mapped. As I show, by simultaneously mimicking and transcending the ATS, corporate criminal liability for international crimes offers human rights advocates a fresh platform for justice, while also contributing very new perspectives to scholarly debates about the propriety and efficacy of ATS litigation. All in all, the rise of corporate criminal liability for international crimes offers new ideas about the importance of corporate accountability globally, which understandably, never figured within the relatively narrow framing required for the ATS or the business and human rights discourse more broadly.

Amicus Brief Before the US Supreme Court on the Non-Extraterritoriality of the Alien Tort Statute

question presented for re-argument is whether and under what circumstances the Alien Tort Statute (ATS), 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United That provision states: 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. Amicus argues that that no cause of action shall be recognized for violations of the law of nations occurring within the territory of a sovereign other than the United States because the ATS must be interpreted under the presumption against extraterritoriality as having no application beyond the borders of the United evidence presented by Petitioners to show clear congressional intent for extraterritoriality is unpersuasive. In particular, their argument based on the express geographical limitation in other clauses in § 9 of the Judiciary Act of 1789 would turn the default geographical scope for the application of a United States statute and the presumption against extraterritoriality upside down and treat the entire world as that default scope. However, the proper default scope is the territory of the United Amicus further argues that if the ATS applies extraterritorially to a violation occurring within the territory of a foreign sovereign, it should be interpreted as having incorporated the entire bundle of international law norms with respect to that particular violation, substantive, remedial and jurisdictional and the recognition of a cause of action under the ATS must meet the requirements from that bundle of norms. Applying these conditions, no cause of action shall be recognized for corporate liability because international law does not recognize corporate liability for torts for violations of customary international law and because any such alleged international law norm does not meet the Sosa clear definition requirement. Similarly no cause of action shall be recognized for violations with which the United States has no direct and substantial connection because ATS jurisdiction cannot be exercised over them. Furthermore, ATS Jurisdiction cannot be built upon universal jurisdiction since international law recognizes neither universal criminal jurisdiction except over piracy nor universal civil jurisdiction. Finally, ATS jurisdiction cannot be built upon the transitory tort doctrine because it is a peculiarly special doctrine having no general applicability and is contrary to international law.

The Long Arm of Human Rights Risk: Supply Chain Management and Legal Responsibility

The recent Rana Plaza factory disaster in Bangladesh is yet another bloody and stark reminder of the real legal, reputational and economic risks facing corporations at the top of the supply chain for human rights infractions further down it. By reviewing such litigious avenues as the US Alien Torts Statute (even after Kiobel) and other tortious routes in UK and Europe, along with the impacts of individual retailer accords, the authors highlight the fact that the extraterritoriality of human rights abuses is no shield against liability. The article explains the reasons why companies need to be aware of the serious possibilities of legal action in their home jurisdictions for human rights abuses with which they may be associated by way of their supply chains relations, and argues for serious reforms to the current levels of due diligence in supply chain management.

Reviving Human Rights Litigation After Kiobel

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

The Paradox of Kiobel in Europe

One of the most striking features of Chief Justice John Roberts’s majority opinion in the U.S. Supreme Court’s judgment in Kiobel v. Royal Dutch Petroleum Co. is how it pays homage to foreign governments’ opposition to the extraterritorial application of the Alien Tort Statute (ATS), as voiced most prominently from European foreign ministries. “[F]oreign policy concerns” and the overarching goal to avoid diplomatic tensions with foreign sovereigns are themes heavily informing the Roberts opinion. The majority found the presumption against extraterritoriality applicable to the ATS in large part due to fear of “unwarranted judicial interference in the conduct of [U.S.] foreign policy” if the Court allowed the ATS to “reach conduct occurring in the territory of a foreign sovereign.” In that light, the Kiobel judgment can be understood primarily as a decision prohibiting the overreach of U.S. law and protecting jurisdictional prerogatives of lex loci delicti and state of incorporation alike.

Kiobel and the Surprising Death of Universal Jurisdiction Under the Alien Tort Statute

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink

Kiobel v. Royal Dutch Petroleum Co. marks the second time in nine years that the Supreme Court has ruled unanimously that the Alien Tort Statute (ATS) does not provide jurisdiction in a high-profile human rights case, a sequence that might suggest an end to the gilded age of human rights litigation that began with Filártiga v. Peña-Irala. On closer analysis, however, Kiobel, like Sosa v. Alvarez-Machain before it, adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model. To the contrary, Sosa and Kiobel invite considerably more ATS litigation than they resolve or bar and therefore confirm Justice Antonin Scalia’s memorable encapsulation of the Court’s “Never Say Never Jurisprudence.” All four of the opinions in Kiobel confirm that multiple significant issues remain for future resolution, but it is unrealistic to expect answers on the basis of the Court’s decision because what is law in Kiobel isnt clear and what is clear in Kiobel isn’t law.

Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy

The Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

Kiobel v. Royal Dutch Petroleum Co. (U.S. Sup. Ct.)

Kiobel v. Royal Dutch Petroleum is the United States Supreme Court’s second decision interpreting the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which was enacted by the First Congress as part of the Judiciary Act of 1789. The ATS provides that federal 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.” Absent the ATS, such claims could only be brought in state, not federal, courts.

Global Land Grabbing: A European Self-Critique

Global land grabbing, the contemporary great transformation from small-scale farming to large-scale agroindustry, has been analyzed from different legal perspective and by adopting a plurality of points of view. In particular, scholars and non governmental organizations (NGOs) have amply discussed the use of international law and international human rights as countermeasures for the widely known negative effects of the enclosure of public resources. Among the various proposals brought on the table, it has been suggested to trigger the Alien Tort Statute, to made reference to the accountability of recipient states on the basis of international conventions, and it has been affirmed the existence of a duty for the home countries to control the actions of their citizens beyond their territorial boundaries, as their jurisdiction extended beyond the territorial borders. In this paper, I confront the various attempts to curb land grabbing by means of international legal intervention, but try to go beyond the fragmented vision adopted by certain academic groups and global NGOs. In particular, I combine the 'introspective call' launched by Steve Biko in the 1970s with Susan Marks' insightful invitation not to stop at the bilateral relationship between perpetrators and victims but to look at the hidden beneficiaries, and look at Europe, the place where I come from. As for magic, through this change of perspective, from looking outside to looking within, I expose the internal inconsistencies of European law and policies, together with the role of each individual consumer. It is never easy to be self-critique and understand our responsibility, but only in that way we can tackle the fundaments of a transnational economic system which operates as a connector between every European citizen and locally produced human rights' violations.

Kiobel v. Royal Dutch Petroleum Co.: The Supreme court and the Alien Tort Statute

The U.S. Supreme Court has finally decidedKiobel v. Royal Dutch Petroleum Co.It is the Court’s second modern decision applying the cryptic Alien Tort Statute (ATS), which was enacted in 1789. Since the 1980 court of appeals decision inFilartiga v. Pena-Iralapermitting a wide of range human rights cases to go forward under the statute’s auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States. The statute itself and the decisions that it generates also serve as state practice that might contribute to the developing customary international law of civil universal jurisdiction, immunity for defendants in human rights cases, the duties of corporations, and the right to a remedy for violations of fundamental human rights. During the 1990s, the ATS became the focal point for academic disputes about the status of customary international law as federal common law. Indeed, to the extent that the “culture wars” have played out in U.S. foreign relations law, the ATS has been their center of gravity.

Guest foreword by Khawar Qureshi QC

I am delighted to have been invited to provide the guest foreword for the 2013 Volume of the International Review of Law. Qatar University College of Law, particularly its Dean and staff, are committed to ensuring that the institution provides a platform for constructive exchange of views on topical legal issues. It has been my pleasure since opening the first Barristers’ Chambers in Qatar in 2008, and regularly being in Doha, to witness the law faculty embrace the opportunities presented to teachers and students alike by comparative law study. In addition to the faculty organising regular seminars and conferences on subjects of practical significance, such as international arbitration, energy law and environmental law, the Review provides a valuable opportunity for legal scholars from all over the world to share their understanding and experience. After all, it is only by studying different systems of law, (or engaging in practice which exposes one to different systems of law as I have been fortunate to benefit from), that one appreciates that all legal systems suffer from imperfections. The true test of any legal system is its ability to engage in critical and constructive self-assessment on a regular basis, as well as being receptive to well meaning input from others interested in promoting a strong legal system. A quick perusal of the contents list of International Review of Law reflects the success of Qatar University College of Law in establishing the position of this legal journal as a source of learning on a wide variety of issues. This Volume contains articles on civil disputes, specifically construction related mediation and claims involving maritime vessels (which developed in the ancient admiralty jurisdiction of the English Courts). There are articles on international law and regulation – in the realms of telecommunications privacy issues, and energy transmission. Corporate liability under the US Alien Tort Statute is examined in one article, and there are articles on medical law and ethics. One must not overlook the significance of Islamic law, and the vital need for greater scholarly endeavour in this regard. Shari’ah law is addressed in two separate articles concerning divorce and “end of life” medical treatment. I look forward to reading future volumes of International Review of Law, which I am sure will continue to address significant subjects and thereby contribute to legal learning and debate.

Corporate liability for violating international law under The Alien Tort Statute: The corporation through the lens of globalization and privatization

تناقش هذه المقالة مدى تأثير الأدوار المتغيرة للدول جهة عامة والشركات جهة خاصة بالنسبة لمفهوم مسؤولية الشركة في القانون الدولي. من المنظور التقليدي، يقتصر القانون الدولي على المعاملات والعلاقات بين الدول ذات السيادة، ومن ثم فهو لا يشمل سوى الحقوق والواجبات للدول الخاضعة للقانون الدولي فقط. ولكن هل ما زال هذا الفرق التاريخي يؤخذ بعين الاعتبار في عالمنا اليوم؟ إن سياق دعاوى قانون تعويض الأجانب عن الأضرار يقدم نموذجاً ممتازاً لدراسة هذه المسألة. ويرجع السبب في انتقاد ومعارضة مسؤولية الشركات بموجب قانون تعويض الأجانب عن الأضرار إلى الفصل بين الدولة كجهة عامة من ناحية والجهات الخاصة من ناحية أخرى. ويدفع معارضو المسؤولية القانونية للشركات بحجة أن القانون الدولي ينطوي على العلاقات بين الدول وبعضها، أو بين الدول والأفراد، وهو ما يختلف عن العلاقات بين الشخصيات الاعتبارية، مثل الشركات والأفراد. حاولت تفسيرات أكاديمية سابقة (وكذلك بعض الأحكام القضائية) سد الفجوة بين المسؤوليات بالتأكيد على أنه طالما أن الأفراد العاديون معرضون للمسؤولية القانونية حال انتهاك بعض القواعد الإلزامية، فإن الشركات باعتبارها تمثل نموذجاً عن الأفراد يجب أيضاً أن تتحمل مسؤولية قانونية. وبدلاً من مقارنة الشركات بالأفراد العاديين، تطرح هذه المقالة إمكانية، بل وجوب مقارنة الشركات العالمية بالدول كجهات عامة. وقد أسهمت العديد من المستجدات بقوة في تأييد ودعم مفهوم المسؤولية القانونية للشركات. أولاً، السلطة المالية والنفوذ اللذان تمارسهما الشركات العالمية على الأفراد تضاهي تلك التي تمارسها الدول. كما أن قدرة الشركات العالمية الكبرى الآن على التسبب في أضرار جسيمة وواسعة النطاق – وهي القوة التي تمتلكها عادةً الدول فقط – يلغي الفوارق بين الشركات العالمية والدول. وثانياً، تقلص الحد الفاصل بين الدول والشركات إلى حد كبير في السنوات الأخيرة، حيث أصبحت أدوار ومهام الدول والجهات الخاصة تبادلية. فكثيراً ما تولت الجهات الخاصة أدواراً عامة، وقامت الدول بإسناد مهام وخدمات عامة لجهات خاصة. وبالتوازي مع ذلك، تنخرط حالياً الجهات الرسمية أو التابعة للدولة في بعض الأعمال كجهات خاصة من خلال تشغيل صناديق الاستثمار السيادية والمنشآت المملوكة للدولة، مما يقلل من وضوح الحد الفاصل بينهما. تناقش هذه المقالة هذه المستجدات وتدعو إلى إعادة تقييم أي اعتراض على مسؤولية الشركات مبني على الفروق بين الدول والشركات، ليراعي تلاشي هذه الفروق بين الجهات العامة و الخاصة . وإذا سلمنا بإمكانية التعامل مع الشركات العالمية الكبرى باعتبارها جهات مماثلة للدول ذات السيادة، فلا فرق بين الواجبات والمسؤوليات التي تحملها هذه الشركات على عاتقها تجاه العامة بوصفها حكومة ولاية أو إدارة محلية

U.S. Supreme Court Unanimously Rejects Alien Tort Statute Jurisdiction in Kiobel

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Trends in the Social [Ir]Responsibility of American Multinational Corporations: Increased Power, Diminished Accountability?

The purpose of this invited essay is to assess the future of the CSR performance of American multinationals in light of several ongoing trends. These trends include companies’ voluntary CSR programs and the global self-regulatory standards for responsible company activities that are developing in almost every industry. Moreover, the decade-long project at the United Nations to identify multinational companies’ responsibilities with respect to international human rights, ultimately spearheaded by Special Representative John Ruggie, has for the first time established global expectations of responsible corporate activity. At the same time, however, legal developments in the United States may be trending in the opposite direction, toward increased power and diminished accountability for corporations. Two legal developments that highlight this counter-trend will frame this discussion. The first, the Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) recognizes a constitutional right for corporations to give financial support to a wide range of electioneering activities, including by using corporate funds to pay for and broadcast advertisements for specific candidates for office. The effect is to allow American companies to further consolidate their already substantial political power. The second, the opinion by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), reh’g en banc denied, 642 F.3d 379 (2011), aff’d, 569 U.S. __ , 133 S. Ct.1659(Apr. 17, 2013), denied the possibility of corporate liability under the Alien Tort Statute for Royal Dutch Shell’s employees’ alleged violations of Nigerian community members’ international human rights. A 2-1 majority held instead that violations of international law could only be asserted against natural persons or nations. The Supreme Court granted certiorari and in a decision handed down on April 17, 2013, the Court unanimously affirmed the judgment of the Second Circuit. The five-Justice opinion of the Court held that the ATS cannot be used to redress violations of the law of nations that occur outside the territory of the United States, except in exceptional circumstances not found in Kiobel. Neither the majority opinion nor the concurrence addressed the corporate liability issue, which means that the Second Circuit’s ruling on that issue remains the law of the Second Circuit — an important outcome, given the significance of the Second Circuit as a venue for ATS cases. Taken together, the overall effect of the Second Circuit’s rejection of corporate liability for human rights violations and the Supreme Court’s rejection of exterritorial application of the ATS to any defendant, corporate or otherwise, is the substantial evisceration of companies’ legal accountability for international human rights violations under the ATS. On a theoretical level, these decisions send mixed messages about corporate personhood and identity. But on a practical level, the two decisions work in unfortunate concert to increase the already considerable political power of U.S. corporations at home, even as they reduce the risk of legal accountability for their actions abroad. By doing so, they shrink the shadow of the law — the threat of hard legal regulation — that has been an important incentive to the adoption of voluntary, soft-law CSR standards. Thus, these legal developments, though ostensibly unrelated to the voluntary pursuit of CSR activity, may in fact act as a disincentive to that activity.

Beyond Securities Fraud: The Territorial Reach of U.S. Laws After Morrison v. N.A.B.

In Morrison v. National Australia Bank, the Supreme Court sent a clear signal that the presumption against extraterritorial application of federal legislation must be construed seriously going forward. The Court then adopted a transaction-based approach to resolving claims brought under the antifraud provision of the Exchange Act, focusing almost exclusively on the place of the transaction. In the months after the decision, practitioners and academics alike directed much of their attention––and criticism––on the impact it would have on private securities litigations. This Note posits that the real significance of Morrison lies in its application beyond securities law. Indeed, in the two and a half years since the decision, Morrison has been raised by defendants seeking to dismiss claims brought under the RICO Act, the Alien Tort Statute, the Torture Act, the Lanham Act, the Sherman Act, and the Anti-Retaliation Provision of the Dodd-Frank Act, to name a few. The use of Morrison to limit claims beyond securities fraud is troubling for several reasons. First, finding a clear expression of extraterritorial effect in the language and context of a statute is an inherently subjective exercise. Different courts have applied, and will continue to apply, inconsistent standards concerning similar statutes. Second, the transaction-based approach, which acts as a bright-line test in cases involving exchange-traded securities, may not be so readily adapted under a wholly different set of law and facts. As a result, courts that agree on a statute’s lack of extraterritorial effect may nonetheless disagree regarding its extension to reach a claim. Finally, many of the policy rationales for limiting the cross-border application of the Exchange Act do not so readily extend to other statutes. This Note examines the application of Morrison both inside and outside of securities law. It then makes a case against extending Morrison, and suggests steps that Congress may take to provide greater clarity for the courts.

Sensibly Construing the 'More Likely than Not' Threshold for Extraordinary Rendition

The use of Extraordinary Rendition, aside from assassination, was perhaps the most controversial method that the Bush Administration utilized to neutralize suspected terrorists and unearth alleged associates and plans. Since the Bush Administration acknowledged the Extraordinary Rendition program in 2006, human rights groups and scholars have condemned the legality of abducting and covertly transferring captives to other states without legal processes or assurance that human rights would be respected after rendition. Amnesty International and Human Rights Watch currently advocate that charges be brought against U.S. officials who rendered individuals to states for harsh interrogation. Americans courts did not bring charges against U.S. officials, but after a criminal trial in absentia and three years of appellate processes, in September 2012, Italy’s highest criminal court upheld the convictions of 23 CIA agents who were involved in Extraordinary Rendition operations. This result seems substantively inconsistent with the U.S. Supreme Court’s refusal of certiorari over Arar v. Ashcroft in June 2010, which rejected the theory that victims of Extraordinary Rendition had a right to civil damages. This article emphasizes that investigations are warranted for several reasons. First, there is strenuous logic inherent in presuming that Extraordinary Rendition can be employed to have other sovereign states use coercive tactics to attain intelligence information from suspected terrorists with methods that exceeded those employed in Pentagon- and CIA-run facilities and to still assume that the methods were not “more likely than not” to result in torture under binding law. Second, there are well-founded reasons under international law for top officials to be the principal subjects of investigation, rather than subordinates. Third, there may be inequitable treatment in that the Alien Tort Statute provides a jurisdictional basis to sue foreigners in American courts for universal jurisdiction human rights crimes, but not U.S. officials committing similar acts.

Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute

The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States’ obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00 — a condition easily met in cases against large corporations.