06/22/2012 06:04 pm ET Updated Aug 22, 2012

This American Right: On Genocide and the Supreme Court

A recent and stunning report by This American Life, in conjunction with Pro Publica, tells the story of a decades-old atrocity committed by government troops in the Guatemalan Civil War of the 1980s. The report describes the massacre at Dos Erres, a tiny village in rural Guatemala. This massacre was one of hundreds, if not thousands, committed by the Guatemalan military in an effort to deter the largely neutral rural population from supporting the rebel resistance to the military-backed government there. Through the application of some crafty CSI-type forensic work, including the use of DNA evidence, human rights activists were able to track down the victims of the massacre and bring the perpetrators of the horrendous act to justice, one of the first such prosecutions in Guatemalan history. But the prosecution of those responsible for the horrors at Dos Erres is not the first time that a representative of the Guatemalan military has been held accountable for atrocities committed during the civil war there. No, in the 1990s, a Guatemalan general was sued successfully in U.S. courts for his role in leading the army during the period when the worst abuses took place. Tragically, the U.S. Supreme Court may be poised to gut the law that makes this mode of redress available to victims of human rights abuses worldwide.

The case in which the reach of this law arises, Kiobel v. Royal Dutch Petroleum, was before the Supreme Court this most recent term, and has received less attention than some other, more high profile cases presently before the court. One of the questions the case raises is whether corporations can be held responsible for violations of human rights norms. Of course, since corporations are "people" that enjoy First Amendment rights, at least according to the court as currently constituted, it would seem quite clear that they can be held responsible for human rights abuses. Indeed, since corporations that supported Nazi Germany were charged with, and found guilty of, human rights abuses for their participation in genocidal activities during World War II, one would think Kiobel would be a slam dunk. After oral argument before the court a second question came up: whether a centuries-old law, the Alien Tort Statute, should apply to acts carried out outside the territorial United States. The litigants were ordered to prepare briefs on this new issue and the case was pushed off to the court's October Term.

The Alien Tort Statute, a part of the law that created the federal court system in 1789, authorizes aliens to sue in U.S. courts for violations of the "law of nations": i.e., a term of art that encompasses generally accepted principles of international law. One of the original purposes of the law was to offer recourse to victims of piracy. Through the law, if a foreign ship owner tracked a pirated vessel to a U.S. port, the person who had commandeered the ship could be sued in the local federal court. In more recent times, the law has been utilized by victims of human rights abuses throughout the world to bring to justice those perpetrators of egregious human rights violations who attempt to take shelter in the U.S., and thus fall within the jurisdiction of the U.S. courts.

Take, for example, the case of Xuncaj v. Gramajo. In 1991, it came to the attention of human rights advocates that Hector Gramajo, a notorious Guatemalan general who was a military commander in the Guatemalan highlands where some of the worst abuses of the civil war took place, was a graduate student in residence at Harvard. Advocates quickly marshaled resources and found Guatemalan refugees residing in the U.S. who had lost family members to the acts of the Guatemalan military under his command. These refugees served Mr. Gramajo with a complaint under the Alien Tort Statute while he was in his graduation procession at Harvard, in full regalia. Mr. Gramajo chose not to defend himself in the lawsuit, and a default judgment was entered against him for nearly $50 million in damages.

Fast forward to 2012. The plaintiffs in Kiobel are citizens of Nigeria who sued several multi-national oil companies over human rights abuses carried out by the military there, allegedly in coordination with the defendant-corporations, to protect oil exploration and extraction in the country. The issue now before the Supreme Court in this case is whether Congress, in passing the Alien Tort Statute, meant it to apply to violations of international law that took place outside U.S. territory. Apparently, in the eyes of at least those members of the court who asked for the additional briefing on this question, Congress may have passed the statute to discourage acts of piracy from taking place in Boston Harbor.

That the nation's first Congress intended the Alien Tort Statute to apply to suits by foreign plaintiffs against foreign defendants, and that it should apply to acts occurring extraterritorially, can hardly be disputed.

The Judiciary Act of 1789, the statute where the ATS was originally found, established the federal court system, and laid out the jurisdiction of these new courts. In one section, the statute provides for suits between aliens and U.S. citizens. This is a form of "diversity jurisdiction" set forth in Article III of the Constitution. Another section establishes a second form of jurisdiction: i.e., suits by aliens for violations of international law. Nowhere does the statute say that such suits are limited to those against U.S. citizens only, or that the statute's reach was only to the U.S. borders. Indeed, an alien could sue a U.S. citizen in U.S. courts through diversity jurisdiction, regardless of the basis of the action; the addition of a second basis of jurisdiction, for the very same suit, would be redundant. At the same time, suits by aliens against aliens for acts that did not involve violations of generally accepted principles of international law would not raise important issues for which federal jurisdiction would be appropriate. Such cases would not find themselves in federal court, and rightly so.

At the same time, to the extent a defendant sued under the Alien Tort Statute is not found in the U.S., the statute would not grant jurisdiction over that defendant because a court could not obtain personal jurisdiction over him or her: i.e., the court would have no power over such a defendant.

Thus, the Alien Tort Statute has slim -- yet elegant -- contours. It was created to encompass a relatively narrow -- yet important -- class of cases: those by foreign victims of international law violations who find the perpetrators of those acts within U.S. territory and thus within the jurisdiction of the U.S. courts.

Those that argue that the Judiciary Act did not set up a second basis of jurisdiction -- of suits by aliens for violations of international law, regardless of who the defendant might be -- ignore the plain language of the statute. Suits by aliens against U.S. citizens come under the diversity jurisdiction of the federal courts, and suits by aliens for violations of international law were given a separate means of redress in those same courts.

As to extraterritoriality, i.e., the argument that the statute should not apply to acts taking place outside the U.S., it is hard to imagine that Congress was looking to prevent violations of international law committed on U.S. soil, or in its harbors. Indeed, the Judiciary Act of 1789 clearly applies extraterritorially, as several of its provisions explicitly extend the jurisdiction of the U.S. Courts to the "high seas."

If the Supreme Court takes an unprecedented and narrow view of the statute, it will mean that perpetrators of human rights abuses, like those that occurred in Dos Erres, who might seek shelter in the United States -- or tap into our institutions of higher education, as was the case with Mr. Gramajo -- will no longer have to worry that their victims can sue them in U.S. courts. This fundamental right, open to anyone around the world, and established in the early days of the republic, was designed to ensure that the U.S. would not serve as a safe harbor for international criminals. The Supreme Court should not close the court house doors to the victims of such criminals by foreclosing a right as old as the nation: that of victims of recognized violations of international law, such as acts of genocide, to sue international criminals in U.S. courts when those criminals seek shelter within our shores.

Congress created this right, and it has served to promote principals of international justice for over two centuries. The Supreme Court must not now render the statute worthless by gutting its most important, and most powerful, component.