WASHINGTON - U.S. Attorney General John Ashcroft has launched a sweeping attack against a 214-year-old human rights law that has helped provide justice to Nazi Holocaust victims and peasants from Latin America and Asia.

This is a craven attempt to protect human rights abusers at the expense of victims. The Bush administration is trying to overturn a longstanding judicial precedent that has been very important in the protection of human rights.

Kenneth Roth, executive director of Human Rights Watch (HRW)

The law, the 1789 Alien Tort Claims Act (ATCA), has been used with increasing frequency over the past 24 years by victims of serious rights abuses committed overseas by foreign government leaders and senior military officials, as well as U.S. and foreign-owned corporations, to get a hearing before U.S. federal courts.

Now, however, Ashcroft's Justice Department has asked the Ninth Circuit Court of Appeals in California to effectively throw out all cases that deal with abuses that allegedly took place overseas, arguing that the law is "somewhat of a historical relic" that itself has been abused by plaintiffs to enforce international human rights laws and norms.

It also said that the law poses a threat to Washington's anti-terrorist campaign by potentially penalizing or embarrassingforeign governments allied with the U.S.

The Department's intervention has drawn outrage from U.S. human rights groups.

"This is a craven attempt to protect human rights abusers at the expense of victims," said Kenneth Roth, executive director of Human Rights Watch (HRW). "The Bush administration is trying to overturn a longstanding judicial precedent that has been very important in the protection of human rights."

"The brief is a broadside attack designed to wipe the law off the books," agreed Elisa Massimino, director of the Washington D.C. office of the New York-based Lawyers Committee for Human Rights.

ATCA, which was enacted by the very first U.S. Congress as a weapon against piracy on the high seas, permits non-citizens to sue foreign and domestic individuals or companies in the United States for abuses "committed in violation of the law of nations or a treaty of the United States." The only requirement for federal courts to gain jurisdiction under ATCA is for legal service to be served on the defendant on U.S. territory.

While the law fell into disuse during the 19th century, the father and sister of Joel Filartiga, a 17-year-old Paraguayan who was kidnapped and tortured to death in his country, filed a case under the Act in 1980 when the police official responsible for the killing came to the U.S. In that case, the Second Circuit Court of Appeals ruled that the Act permitted victims to pursue claims based on international human rights law.

That ruling was followed by a number of high-profile cases against foreign national leaders, such as Philippine President Ferdinand Marco and Bosnian Serb leader Radovan Karadzic, and senior army or security officers from Guatemala, Indonesia, Argentina, Ethiopia and El Salvador, among other countries. While plaintiffs won in all of those cases, defendants generally did not contest them. Instead, most left the U.S. soon after receiving legal service and refused to pay millions of dollars in damages that were eventually awarded by the courts.

In the early 1990s attorneys representing victims of abuses allegedly committed directly or indirectly by foreign and U.S. corporations also began bringing suits. Survivors of the Nazi Holocaust, for example, used the Act to sue Swiss banks and companies that used slave labor during World War II. Such lawsuits often expedited out-of-court settlements.

More commonly, plaintiffs have sued for abuses committed by foreign armies or police that provided security for U.S. companies operating abroad. Such is the case in which Ashcroft intervened with a "friend of the court" (amicus curiae) brief earlier this month.

The case, which was originally filed in 1996, was brought by attorneys from several environment, labor, and human rights groups on behalf of 16 unnamed Burmese peasants against Unocal Corporation, which held a large interest in the construction of the Yadana gas pipeline. It charged that the Burmese soldiers who guarded the project on behalf of Unocal and other companies involved in the project committed serious abuses against local peasants, including forced labor, rape and murder.

In a landmark decision last September, the Ninth Circuit Court of Appeals overturned the dismissal of the case by a trial court judge and ruled that if plaintiffs produced evidence showing that the company knew about and benefited directly from the troops' conduct, the case should go forward.

In its brief, the Justice Department did not address a specific case. Instead, it argued against the use of the Act itself, arguing that it "has been commandeered and transformed into a font of causes of action permitting aliens to bring human rights claims in United States courts, even when the disputes are wholly between foreign nationals and when the alleged injuries occurred in a foreign country, often with no connection whatsoever with the United States."

To the extent that the Act could be used against U.S. allies in the war against terrorism, it "raises significant potential for serious interference with important foreign policy interests," according to the Justice Department brief.

But rights activists argue that this argument makes little sense because the government could always intervene in a case, as the State Department did last year when it asked a judge to dismiss a claim under the Act brought by plaintiffs from Aceh, Indonesia, against ExxonMobil, if relationships with key foreign allies were at stake.

HRW Director Tom Malinowski noted that the fact that the State Department did not join in the Justice Department's brief on the Burma case was significant.

"I don't think this has anything to do with the war on terror," he said. "I think this is motivated by a very hard-core ideological resistance within the Justice Department to the whole concept of international law being enforced. The notion that international norms are enforceable by anyone is repugnant to some in the Justice Department," he said.

Copyright 2003 IPS

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