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Don't Deny World's Abused the Justice of U.S. Courts


By Ashley Barr
Special to the Atlanta Journal-Constitution
Published on: 04/01/2004

Evidence is mounting that the United States has lost its moral compass on the world stage, from the Bush administration's misguided and costly war in Iraq to U.S. efforts to undermine the new International Criminal Court.

Far from showing global leadership on the promotion of human rights, democracy and the rule of law, U.S. policy and action during the last three years have helped create a world that is both less secure and less rooted in the fundamental principles we hold most dear and upon which this country was founded.

This week the Supreme Court is considering yet another example of the U.S. administration's seeming indifference to enforcing international human rights standards. In the case of Sosa v. Alvarez-Machain, which the court heard Tuesday, the U.S. Justice and State departments are among those challenging the ability of victims of gross human rights violations to sue their abusers in U.S. courts.

For the past quarter-century, such claims have been successfully brought against notorious human rights violators such as Radovan Karadzic for genocide in Bosnia and an Argentine general for disappearances and other abuses during the "dirty war" against political opponents.

The basis for these cases is the Alien Tort Claims Act, part of the first Judiciary Act of 1789, which authorizes civil lawsuits by aliens residing in the United States for violations of the "law of nations."

The Carter administration played an important role in the establishment of the legal precedent allowing ATCA to promote human rights accountability. In 1979, the family of Joelito Filartiga, a 17-year-old who had been tortured to death in Paraguay, found his torturer living in Brooklyn. The Filartigas brought suit under ATCA, and on appeal, the U.S. Justice and State Departments, in an opinion to the court, supported use of ATCA when there is international consensus about the specific rights and violations at issue.

The Filartigas won, but the difficulties of bringing and winning such cases is shown by the fact that since their case there have been few victories; only 18 other individuals have been sued successfully under ATCA. One of these cases involved a group of Ethiopian torture victims living in Atlanta who used ATCA to sue Kelbessa Negewo, the man who tortured them and their families in their homeland as part of the Mengistu government's "Red Terror" campaign.

After immigrating to the United States, one of the victims was hired as a waitress in an Atlanta hotel where, to her horror, she spotted her former torturer working as a bellhop. Seeking some way to hold him accountable, she and other victims sued Negewo in federal court in Atlanta and won a judgment of $1.5 million.

Our country has vocally opposed abhorrent practices such as genocide, summary execution, torture and disappearances. The Alien Tort Claims Act offers one means of redress for the most heinous atrocities. Other countries -- as well as such bodies as the International Criminal Tribunal for the former Yugoslavia -- look to our lead as they seek to promote and enforce human rights. But we are sending a disturbing message.

Some U.S. business groups, which have sought to advance the international rule of law in other areas such as intellectual property protection, have joined the current administration in opposing ATCA lawsuits. They cite the costs of fighting lawsuits and the threat of increased litigation. So far not a single case against a corporation has advanced to a verdict, and no damages have been paid. But corporations should be held accountable if they have knowingly participated in, or provided substantial assistance to, the commission of gross human rights violations.

For example, a church group in Sudan recently won the right to proceed with its lawsuit against Talisman Energy, a Canadian oil company. The plaintiffs allege that Talisman knowingly collaborated with the Sudanese government to clear an area of southern Sudan of its local population so that oil could be extracted from the region.

The government allegedly used the roads and airfields built by Talisman to commit war crimes against the people, who were fighting against the government in Sudan's long-standing civil war. In war-torn countries such as Sudan, where there is no independent judicial system, human rights victims cannot seek justice in their home courts. The United States is one of only a few countries where they can sue those responsible for the violations.

Some may argue that U.S. companies face a competitive disadvantage because of the threat of ATCA lawsuits. This is similar to the argument that was made when the United States took the lead in combating bribery and corruption through the Foreign Corrupt Practices Act of 1977. Then President Carter, when he signed that act into law, stated: "Bribery is ethically repugnant and competitively unnecessary. Corrupt practices between corporations and public officials overseas undermine the integrity and stability of governments and harm our relations with other countries." If that is true of bribery, it is even more true where a company is involved in the worst types of human rights abuses.

The Filartiga case was a key part of the effort that began in the late 1970s to advance U.S. leadership on human rights and the rule of law. Now, a quarter-century later, we should honor that legacy and reject efforts to cripple the Alien Tort Claims Act. Our most important interests, and our reputation as world leaders on the most fundamental human rights issues, are at stake.

Ashley Barr is senior program associate for human rights at The Carter Center.

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