Should the United States Judiciary Protect Human Rights against Enemies of Mankind?

An obscure American statute is back in the news thanks to Jesner v. Arab Bank, PLC, a case centered on terrorist attacks in the Middle East that landed before the Supreme Court on October 11 this year. [1] The case calls into question the future of the Alien Tort Statute (“ATS”), though the outcome is likely to remain unknown until sometime next year. [2] Enacted by the First Congress as part of the Judiciary Act of 1789, today the statute reads, “[t]he 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.” [3]

The landmark case involving the ATS was Filártiga v. Peña-Irala, in which a Paraguayan woman and her father were able to recover $10 million in civil damages from a Paraguayan government official who had tortured and murdered her brother decades before in Paraguay. [4] Specifically, the Second Circuit concluded that Peña’s actions violated international human rights law. [5] Since then, both American citizens and foreigners have used the ATS as they seek justice for heinous acts committed against them by government officials and corporations throughout the world. [6]

In 2013, however, the Supreme Court dismissed a case brought under the ATS for lack of jurisdiction, since the alleged violation occurred in Nigeria. [7] Still, the Court never actually opined on whether the ATS allowed corporations to be held liable in American courts, paving the way for the Jesner case this term. [8]

In Jesner, the non-citizen plaintiffs were victims of various terrorist attacks that occurred between 1995 and 2005 in the Middle East. [9] The plaintiffs contend that Arab Bank, a popular Jordanian financial institution, held accounts for known terrorists, knowingly accepted donations that would be used to fund terrorist activity, and paid out millions of dollars in “martyrdom payments” through its New York branch to families of suicide bombers to compensate and reward them. [10]

The issue before the court is not whether these allegations are true, but whether the bank, a foreign corporate entity, can be sued in the U.S. [11] The plaintiffs’ main argument is that, “[the Bank] violated the law of nations insofar as it financed terrorism, and also insofar as it directly and indirectly engaged in genocide and crimes against humanity.” [12] On the other hand, the Bank argues that under Sosa v. Alvarez-Machain, the plaintiffs’ claims can only succeed on the merits if the plaintiffs are able to show that corporate liability is universally recognized within international law. [13] This notion, the Bank contends, is “fundamentally misguided.” [14]

After hearing oral arguments last month, the Supreme Court justices had mixed reactions, with Neil Gorsuch appearing unsympathetic to plaintiffs’ arguments and Anthony Kennedy seeming more inclined to agree with them. Where they will ultimately come down, and what the future holds for the ATS, is still unknown. [15]