After Jesner: How the Supreme Court Blocked Victims of International Human Rights Violations from Re

Towards the end of April, with little of the public outcry that accompanied its June decisions, the Supreme Court effectively made foreign corporations invincible in U.S. courts for human rights abuses committed overseas.

The case was Jesner v. Arab Bank. In suits filed between 2004 and 2010, thousands of plaintiffs alleged that Arab Bank, a Jordanian company, financed terrorist activities in the Middle East. For over ten years, they argued, the Bank’s New York office kept and distributed money that eventually went to terrorist-affiliated charities. Over 6,000 of these plaintiffs were foreign nationals who sued under a federal law known as the Alien Tort Statute (ATS). The ATS allows foreigners to bring suit in U.S. courts for violations of international law. For decades, it has been effectively used as a source of remedy for violations of international human rights law.

The ATS is short. In only thirty-three words, it allows foreigners (“aliens”) to sue for a tort “committed in violation of the law of nations or a treaty of the United States.” The first question, then, is this: what counts as a violation of the law of nations? In 1789, when the statute was first introduced, “the law of nations” generally regulated diplomatic relations. In recent years, the concept has expanded to include torture, war crimes, and crimes against humanity.

Until 1980, the ATS largely went unused as a tool of legal recourse. However, starting with the case of Filartiga v. Peña-Irala, victims of human rights abuses that occurred in other countries could bring suit against their abusers in American courts. In Filartiga, Paraguayan nationals were allowed to bring suit against a former police inspector for allegedly torturing and murdering one of their relatives in Paraguay.

Human rights advocates seized the moment. Over the next thirty years, they brought suits against government officials and, increasingly, corporations themselves. For human rights survivors who experienced abuse violations overseas, U.S. courts quickly became the only way they could achieve justice.

In the years that followed, two other landmark decisions defined the ATS and solidified the ruling from Filartiga. In 2004, the Supreme Court held in Sosa v. Alvarez-Machain that the ATS granted U.S. courts jurisdiction over claims that violated “universally accepted and obligatory norms of international law.” This broadened the Statute’s reach, giving “the green light” to address severe human rights abuses like genocide, war crimes, and crimes against humanity.

But, if Filartiga and Sosa gave hope to victims of human rights abuses of the power of the ATS, Kiobel marked the beginning of the end. Twelve Nigerian citizens brought suit against Royal Dutch Petroleum Co., alleging that it had been complicit in human rights violations committed by the Nigerian military in the 1990s. In 2013, the Supreme Court dismissed the case, saying that claims cannot be brought under the ATS for events occurring in a different country unless they “touch and concern” the United States “with sufficient force.”

In light of Kiobel, the Court’s decision in Jesner was not unexpected. In a 5–4 decision that splintered along ideological lines, the Court held that foreign corporations cannot be sued under the ATS. In the majority opinion, Justice Kennedy referenced the Statute’s origins, saying that the ATS was originally intended to avoid foreign relations problems by ensuring foreign citizens could seek remedy in the United States. In this case, Justice Kennedy reasoned, years of litigation had caused “considerable diplomatic tensions with Jordan, a critical ally” in the Middle East. Justice Kennedy also feared that allowing foreign corporations to be held liable would stifle American investment abroad.

In her dissent, Justice Sotomayor rebuked her colleagues, warning that the Court’s decision absolved “corporations from responsibility under the ATS for conscience-shocking behavior.” There are better ways, she argued, of resolving the foreign relations concerns. For example, courts could require a foreign plaintiff to try and sue the corporation in her home country. If that brought no remedy, the plaintiff could attempt to bring suit in the United States.

While Jesner made foreign corporations essentially invincible in U.S. courts for human rights violations overseas, it leaves open the possibility that individual corporate actors may be held to account for their misconduct. Claimants must now redirect their charges, and the trick will be to find corporate defendants over whom U.S. courts can establish jurisdiction. This will be an uphill battle, requiring time and money that many victims cannot spare.

Julia Jacovides graduated from the University of Michigan in 2014 with a degree in History. She was Editor-in-Chief of the Michigan Journal of International Affairs from 2013-2014. Julia is in her second year at the University of California, Berkeley, School of Law.

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