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New Scotland Archives — The Altamont Enterprise, November 12, 2009

Old law has new use, liberates oppressed

By Saranac Hale Spencer

NEW SCOTLAND — The narrow scope of international law two centuries ago allowed for what has now become a major means of prosecuting human rights abuses.

“The statute itself is all of one sentence,” said Peter Henner of the Alien Tort Statute, on which he has just written a book.

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” it says.

When it was passed by this county’s first Congress in 1789, the law of nations was limited, Henner said; “That’s evolved.”

Genocide, slavery, and torture can be prosecuted using the statute since they are now violations of international law, although that wasn’t the intent at its passage.

“Contemporary jurisprudence has been extended far beyond the original roots and intentions of the ATS,” Henner writes in the book.

One of the most interesting things Henner noticed while researching, he said, was how law and society has changed.

Between its passage and the landmark Filartiga case in 1980, the statute was used in only about a dozen cases, Henner said.  True to the statute’s intended use, there were a couple of piracy cases, he said, and a child custody battle in 1961, which was “kind of amazing cultural reading.”

In Filartiga v. Pena-Irala, brought by the Center for Constitutional Rights in 1979, a longstanding opponent of the Alfredo Stroessner regime in Paraguay, Dr. Joel Filartiga, and his daughter, Dolly, moved to the United States, where they later discovered the Paraguayan police officer who had tortured Dr. Filartiga’s son to death in 1976.

The Center for Constitutional Rights, based in New York City, successfully brought suit under the Alien Tort Statute.  It was a novel decision, creating an avenue to try international human rights’ abuses in United States courts.

“Contemporary standards of international law, not the relatively few types of torts contemplated by the First Congress, can be enforced under the ATS,” writes Henner, regarding the impact of the decision in the Filartiga case.  “This principle… enabled modern ATS litigation.”

The first attempt to broaden the use of the Alien Tort Statute was about five years earlier, at the end of the Vietnam War.  In the waning days of the United States’ presence there, at least 2,000 babies and children were flown out of Saigon on cargo planes in what was called a babylift.

The first plane, carrying 243 infants and children to California, crashed.

“It is nice to see you Americans bringing home souvenirs of our country as you leave — china elephants and orphans.  Too bad some of them broke today, but we have plenty more,” a Vietnamese lieutenant said at the time, a quote Henner recalled as summing up the tenor of the time, which he had spent engaged in the peace movement.

In 1975, the Center for Constitutional Rights filed a class-action suit on behalf of the children, claiming that their detention was unconstitutional and citing among its grounds the Alien Tort Statute.  The case dragged on for years and was ultimately unsuccessful.

Following the decision in the Filartiga case a few years later, though, there was an avenue for using the statute, which led to dozens of cases.

“The ATS is really almost the backbone of our work,” Katherine Gallagher, an attorney at the Center for Constitutional Rights, said of the significance the statute has gained.

Henner classified three types of cases that use the Alien Tort Statute:

— Those that prosecute repressive governments and their agents that have committed atrocities;

— Those that prosecute multi-national corporations, which sometimes use forced labor or are guilty of aiding and abetting repressive regimes; and

— The latest emergence, the prosecution of cases involving extraordinary rendition.  Henner used the U.S. detention center at Guantanamo Bay as an example of a case that will likely be brought.

Recently, Gallagher said, she has been focusing on cases involving private military contractors.

Henner himself hopes to bring some cases using the statute, he said, and has considered addressing state-sponsored gender discrimination.  “A lot of companies and governments discriminate systematically on the basis of gender,” he said, naming Iran and Saudi Arabia as examples.

Those countries may be exempt under the Foreign Sovereign Immunities Act, but corporations that do business with them may be liable for discrimination, he argues.

Henner began investigating the statute when he prepared a memo on it about eight years ago, he said from the sunlit office next to his Clarksville home, where he practices environmental, labor, and civil rights law.

“This is what we ought to be doing,” he thought when he began his research — writing the book was a way to force himself to learn the whole of the statute, he said.

Human Rights and the Alien Tort Statute, published by the American Bar Association, is technical in some respects, but accessible.  Henner pointed to the legal and historic perspective, saying, “I think the book itself has intrinsic value.”

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