THE ALIEN TORT STATUTE LIVES-CORPORATE COMPLICITY IN ACTS OF TORTURE IN IRAQ CHALLENGED IN A US COURT

Salc : Angela Mudukuti

Aligning business practices with respect for human rights is a global challenge. On 26 June 2014, the United Nations Human Rights Council (UNHCR) passed a resolution to establish an open-ended intergovernmental working group tasked with developing a legally binding instrument to regulate the activities of corporations with regard to international human rights law. Although a majority of member states voted in favour of this resolution the United States of America (USA) was one of fourteen that did not.[1] Despite their unwillingness to address the issue of corporate respect for human rights at the UNHCR, a US court has recently handed down a judgment that has effectively put US companies on notice that they can be held accountable in the US for illegal conduct committed extraterritorially against foreign nationals.

On Monday 30 June 2014, the US Court of Appeals Fourth Circuit in Richmond, Virginia ruled in the case of Al Shimari vs CACI Premier Technology that four Iraqis who were allegedly tortured at the Abu Ghraib prison in Baghdad during the 2003-2011 American occupation could institute a civil suit against the alleged corporate perpetrators. The suit was brought against American corporation and US Military defense contractor, CACI Premier Technology (CACI) in terms of the Alien Tort Statute 28 U.S.C 1350 (ATS). This ruling is significant as it indicates that companies are subject to human rights standards, and that the ATS may still bring justice for foreign nationals subjected to the crimes of corporations.

CACI was contracted to carry out the interrogation of detainees and it has been alleged that torture was used as part of the interrogation process. The U.S Department of Defense conducted official investigations into incidents of torture in Abu Ghraib and stated that, “numerous incidents of sadistic, blatant and wanton criminal abuses were inflicted on several detainees.”[2] Their investigative report also indicated that, “CACI directed and or participated in some of the abuses, along with a number of military personnel”[3]. Acts of torture included severe beatings, mock executions, sexual abuse, and food deprivation.

The case was initially heard in the US District Court of Virginia, in 2013, where the judge dismissed the suit on the following three grounds: the court lacked jurisdiction over claims under the ATS; Iraqi law applied to common law claims against a contractor; and the contractor had immunity from actions related to the terms of its contract.

On appeal, the Court of Appeals had only to determine whether a federal district court has jurisdiction to consider civil claims seeking damages against a US corporation for the torture and ill-treatment of foreign nationals outside the United States. It was feared that the 2013 Kiobel[4] judgment, understood to limit the extraterritorial application of the ATS, might be fatal to this case but the Court, in fact, acknowledged and applied Kiobel to facilitate the adjudication of the case. The Court of Appeals held that while the Kiobel judgment articulated a “presumption against extraterritorial application” of the ATS, that presumption could be displaced in cases that “touch and concern” the United States “with sufficient force”. This, they held, was true of the CACI case.[5] This judgment therefore recognises that CACI, as an American corporation, can potentially be held liable under the ATS for its role in torture committed abroad.

The Court did not rule on the claims’ merits but remanded the case back to the U.S. District judge who had dismissed the case in June 2013.

The judgment is a welcome balance to the Kiobel judgment which appeared to remove much of the force of the ATS. This Court has reminded victims of human rights abuses that US courts are still willing and able to provide a forum for redress against companies complicit in such abuses.

[1]http://www.theecologist.org/News/news_analysis/2459002/un_to_outlaw_corporations_human_rights_abuses.html

[2]Al Shimari vs CACI Premier Technology, Inc F.3d (2014)Judgment page 3 para 2.

[3]Al Shimari vs CACI Premier Technology Inc F.3d (2014)Judgment page 3 para 2.

[4] A tort claim case brought in terms of ATS by Nigerian nationals legally resident in the USA against British, Dutch and Nigerian companies for aiding and abetting crimes against humanity perpetrated by Nigerian troops and polices forces in Nigeria.

[5]Al Shimari vs CACI Premier Technology Inc F.3d (2014)Judgment page 10 para 12.

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