Global Policy Forum

By Richard Hermer and Martyn Day *

George Bush's government is trying to persuade the US supreme court to strike down the most progressive and pro-human rights law on the American statute books - a law which allows multinational corporations to be held accountable in the US courts for human rights abuses abroad. It is not particularly surprising that a Republican government with links to big business should be behind such a move. But what has largely escaped notice is that Tony Blair's Labour government is busy cheering it on from the wings.

Attorney general John Ashcroft's justice department is attacking a statute dating back more than 200 years which lawyers have revived in recent years to bring human rights claims, first against foreign torturers but now against huge companies over their operations in repressive states. The US government's bid to stop this use of the law, passed by America's first congress, is now awaiting judgment by the country's supreme court.

Among the submissions currently being pored over by the nine supreme court judges is a brief filed by the UK government in support of the justice department's stance. This is not a move that the Labour government has sought to publicise. Its support for the Republican administration's challenge to human rights claims will probably come as news to many of its supporters. The statute under attack is the Alien Tort Claims Act (Atca). It has been used in courts throughout America in compensation claims against those deemed to have violated the "law of nations", widely interpreted as meaning breaches of international human rights standards. The statute itself has an uncertain history. It came into being in 1789 but scholars are divided over its original purpose. Some believe it was designed to permit claims by refugees against the former English colonialists. It lay forgotten for many generations until the late 1970s, when it was dusted down by lawyers acting for the family of Joelito Filartiga, a 17-year-old tortured to death by a Paraguayan police officer.

The policeman had slipped out of Paraguay and was located living in New York, where lawyers brought a claim on the basis that his actions were in "violation of the laws of nations". In a now-famous decision, the US second circuit held: "In the 20th century the international community has come to recognise the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free of torture ... for the purposes of civil liability, the torturer has become - like the pirate and slave trader before him - the enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our first congress, is a small but important step in the fulfilment of the ageless dream to free all people from brutal violence." The Filartiga family was awarded $10m, though they were never able to collect it. The policeman was deported.

Following that case, many others have been brought in the US courts by victims of human rights abuses. Philippine nationals sued the family of ex-dictator Ferdinand Marcos for torture during his rule. A group of Guatemalans successfully sued the country's former defence minister for complicity in torture and extra-judicial killings. Women who were raped in Bosnia won a multimillion dollar compensation award against the Bosnian Serb leader Radovan Karadzic in a Manhattan court. Victims rarely see any of the money they are awarded because the defendants have no assets in the US. But in most cases they have had the intense satisfaction of hearing their cases properly determined by a court of law and seeing their abusers forced to flee the United States. After claims were filed against German corporations and Swiss banks arising out of the Holocaust, political pressure secured large settlements, even though the lawsuits were eventually thrown out by the courts.

Until recent times the US justice department has endorsed the use of the Atca by human rights activists. Now, however, it is seeking to argue that the act should be seen purely as a historical anomaly with no present-day power. It has chosen a case in which a Mexican doctor, Humberto Alvarez-Machain, won $25,000 in damages against Jose Sosa, one of a group of Mexicans who abducted him at the behest of the US Drug Enforcement Administration (DEA). They brought him to the US to stand trial for the alleged torture killing of a DEA official investigating a Mexican drug cartel. The charges were thrown out at trial, when the judge said that the government's case was based on speculation rather than evidence. Alvarez-Machain's award was upheld by the ninth US circuit court of appeals.

Why should this Republican administration be so bitterly opposed to this law's existence? In the past few years, litigation has been launched against multinationals for their complicity in human rights abuses across the globe. An action is being fought in California against the oil company Unocal, which is alleged to have conspired with the Burmese junta to use slave labour when building a pipeline. A case is pending in the New York courts against Shell for alleged complicity in the murders of Ken Saro-Wiwa and others in Nigeria. And DaimlerChrysler is being sued in California, accused of playing a part in the disappearance and torture of workers and union leaders at the height of the "Dirty War" in Argentina nearly 30 years ago.

You don't have to be particularly cynical to begin to understand why an administration which, to put it as neutrally as possible, is friendly to big business, is seeking to persuade the supreme court that the Atca should be consigned to history. What is far more intriguing is why the UK government would choose to take the highlyunusual step of instructing expensive US attorneys to file submissions to the court in support of Ashcroft. Our government's written submissions - made jointly with Australia and Switzerland - seek to argue that domestic courts should not interfere with matters arising out of foreign jurisdictions. However, the act has been interpreted to apply only to the most extreme violations of international human rights: genocide, war crimes, piracy, slavery, torture, unlawful detention and summary execution. Sitting governments and current leaders are protected by sovereign immunity.

In an age of increasing notions of universal jurisdiction for international crimes, following the ruling of the House of Lords in the Pinochet case, and the willingness of our own courts to accept cases from overseas, particularly in the fields of commercial law and defamation, the UK government's arguments sound hollow.

The Bush government argues that the act threatens foreign policy, endangers corporations, and harms the war on terrorism by annoying countries it needs as its allies in the war. But among those urging the supreme court to uphold the act are a group of relatives of the victims of the September 11 atrocity, who included 209 foreign nationals. They argue in their brief: "Independent lawsuits by victims of terrorist acts can be extremely helpful to the government in its effort to track down terrorists and their sources of funding." Critics of the US government's stance point out that if the Bush administration gets it way, civil lawsuits against al-Qaida will be barred.

The Atca has been a truly remarkable tool for seeking justice for victims of human rights abuses, empowering torture victims and the families of those who have been killed to seek redress for crimes that would otherwise have gone unpunished. It is astonishing and profoundly saddening that our own government would spend its time and our money on seeking to support Bush and Ashcroft's attempts to stifle justice for victims of gross human rights violations.

About the Author: Richard Hermer is a barrister specialising in human rights at Doughty Street Chambers, and former human rights practitioner in residence at Columbia University, New York. Martyn Day is a solicitor specialising in international claims and senior partner of Leigh, Day & Co.