Ninth Circuit analyzes district court’s application of
the Alien Tort Statute against a foreign corporation for crimes committed
abroad
The Ninth Circuit reviewed a case arising out of the
operations of Rio Tinto mining groups in Papua New Guinea and the uprising that
occurred against Rio Tinto in the late 1980’s that resulted in the use of
military force and many deaths. The Plaintiffs were charged under the Alien
Tort Statute (“ATS”), 28 U.S.C. § 1350, for crimes against humanity, genocide,
racial discrimination, and war crimes.
This case was brought before this Court twice. The Court
previously held that exhaustion of the Plaintiffs’ claims for crimes against
humanity, war crimes, and racial discrimination was necessary and remanded. On
remand, the district court held that it would be inappropriate to impose a
prudential exhaustion requirement on the Plaintiffs’ claims for crimes against
humanity, war crimes, and racial discrimination, finding that the claims
required exhaustion. The district court also dismissed all claims of genocide,
war crimes, racial discrimination, and crimes against humanity. Plaintiffs
appealed.
The U.S. Court of Appeals for the Ninth Circuit affirms in
part, and reverses and remands in part. The Court holds that only the
Plaintiffs’ claims of genocide and war crimes fall within the jurisdiction of
the ATS, and crimes against humanity and racial discrimination do not.
The ATS “was enacted on the understanding that the common
law would provide a cause of action for the modest number of international law
violations . . . based on the present‑day law of nations . . . rest[ing] on a
norm of international character accepted by the civilized world and defined
with a specificity comparable to the features of the 18th‑century paradigms we
have recognized [violation of safe conducts, infringement of the rights of
ambassadors, and piracy]. [Sosa v. Alvarez‑Machain, 542 U.S. 692, 724‑25
(2004)].” [Slip op. 7]
“Thus, in discussing the definite nature of an international
norm that gives rise to a cause of action in an ATS suit against a private
actor, the Supreme Court also noted that a related consideration is whether
international law extends the scope of liability for a violation of a given
norm to the perpetrator being sued, if the defendant is a private actor such as
a corporation or individual.” [Slip op. 7]
Rio Tinto attempted to argue that due to its status as a
corporation, it could not be held subject to the ATS. However, following the
precedent of the Supreme Court in Sosa v. Alvarez‑Machain, the Court determines
that Rio Tinto could be sued under the ATS. “The ATS contains no such language
and has no such legislative history to suggest that corporate liability was
excluded and that only liability of natural persons was intended.” [Slip op.
14]
The Court first looks to the charge of genocide under the
ATS. “Claims of genocide fall within the limited category of claims
constituting a violation of internationally accepted norms for ATS
jurisdiction. Sosa, 542 U.S. at 729. They are not barred by the act of state
doctrine because violations of jus cogens norms are not sovereign acts.” [Slip
op. 35]
Further, the Court holds that the jus cogens prohibition of
genocide extends to corporations. “Given the universal nature of the
prohibition, if an actor is capable of committing genocide, that actor can
necessarily be held liable for violating the jus cogens prohibition on
genocide. Indeed, the implication that an actor may avoid liability merely by
incorporating is inconsistent with the universal and absolute nature of the
prohibition against genocide.” [Slip op. 36] “Given that an amorphous group, a
state, and a private individual may all violate the jus cogens norm prohibiting
genocide, corporations likewise can commit genocide under international law
because the prohibition is universal.” [Slip op. 37]
Next, the Court looks to the complaints allegations of war
crimes in the form of murder against the civilian population of Papua New
Guinea. The Court cites a district court case in Virginia, In re Xe Servs.
Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009), that held that war
crimes could give rise to a cause of action under the ATS.
“Claims for violations of the international norm proscribing
war crimes are cognizable under the ATS. By ratifying the Geneva Conventions,
Congress has adopted a precise, universally accepted definition of war crimes.
Moreover, through enactment of a separate federal statute, Congress has
incorporated this precise definition into the federal criminal law. 18 U.S.C. §
2441. Thus, Congress has clearly defined the law of nations to include a
binding prohibition on the commission of war crimes. Given this, and given
Sosa’s teachings, it follows that an allegation of a war crime states a cause
of action under the ATS.” Id.
International law also recognizes that corporations could be
held liable for war crimes. “Because parties to a conflict not of an
international character by definition must include at least one non‑state
actor, entity, or group, Common Article III cannot reasonably be interpreted to
be limited to states.” [Slip op. 45]
Third, the Court looks to crimes against humanity and racial
discrimination, finding that these charges do not fall within the jurisdiction
of the ATS. “Since none of the statutes explicitly include a blockade in their
definition of extermination, Plaintiffs’ claim for crimes against humanity can
come within the statutes only if the blockade constitutes other inhumane acts.”
“To meet the Sosa test, however, the blockade must be a
violation of a recognized specific norm. The statutes do not create such a
norm. There is no source of recognized international law that yet identifies a
food and medical blockade as another inhumane act or otherwise qualifies it as
a crime against humanity. In the absence of any such source, a food and medical
blockade does not violate a specific internationally recognized norm within the
meaning of Sosa.” [Slip op. 51] Therefore, the Court holds that the crimes
against humanity did not fall under the purview of the ATS.
As for racial discrimination, the Court finds that the
international norm prohibiting systematic racial discrimination is not
sufficiently specific and obligatory to give rise to a cause of action under
the ATS. The treaty itself provides a definition of racial discrimination but
does not provide any such definition of systematic racial discrimination, nor
even include the word “systematic.”
“It is important to recognize that the claim of racial
discrimination as set forth in Count IV of the complaint is for a violation of
the Racial Discrimination Convention. It is not a claim of apartheid as defined
in the relevant international statutes. . . . We assume, without deciding, that
a claim akin to apartheid would be cognizable under the ATS, but the complaint
in this case does not allege such a claim.” [Slip op. 54]
Citation: Sarei v. Rio Tinto PLC, No. 02‑56256 (9th
Cir. 2011).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
