The US Alien Tort Statute (ATS) was considered one of the foremost judicial avenues for vindicating human rights violations until two Supreme Court cases limited its scope, leading practitioners and scholars to pronounce its death as a tool for human rights litigation. Although it no longer allows for cases against foreign companies for harms occurring on foreign soil, this blog argues that it is not dead. In light of the Trump administration’s policies relating to migrants and asylum-seekers, which has resulted in grave suffering in migration detention centers, this blog explores the possibility of bringing a suit for violations against migrants, with a particular view to the liability of private prison companies who run the immigration detention centers.
A number of cases are already winding their way through the courts, claiming civil damages for harms arising out of current immigrant detention practices. These cases typically plead the violation of ordinary torts and statutory provisions. A claim brought under the ATS, on the other hand, would allow these harms to be characterized as violations of international law, including conduct that is internationally considered to constitute grave human rights violations or even international crimes. This labelling would not only highlight the gravity of the violations, but also require the courts to consider the claims in light of the demands of international law.
What Is the Alien Tort Statute?
The ATS is a US law that grants federal courts jurisdiction over a certain set of tort claims—violations of laws of nations or international treaty obligations—brought by non-US citizens. It lay mostly dormant until 1980, when two Paraguayan nationals used it in order to file suit against a Paraguayan State official in Filartiga v Pena-Irala, claiming that he had tortured their family member. This case inspired a flood of human rights litigations in US courts, and soon the ATS was internationally regarded as one of the most important tools for vindicating human rights.
The ATS was utilized for international human rights claims for two main reasons: first, it allowed foreign nationals to file suit in US federal courts and thereby offered victims of human rights violations a forum in which their claims could be heard. Second, it is specifically reserved for violations of the laws of nations, including certain human rights violations.
After the use of ATS for human rights claims began to proliferate, the US Supreme Courts clarified its scope and imposed certain limitations. First, in 2004 in Sosa v Alvarez-Machain, the court explained what constitutes a violation of the laws of nation, holding that it encompasses “a narrow class of international norms,” which are considered settled rules of international law by the general assent of civilized nations. Such claims must be universal, definable, and obligatorily prohibited. In Sosa, the court considered that the plaintiff’s claim of arbitrary detention as a violation of the laws of nations failed because it had not attained the status of binding customary international law. Despite recognizing that arbitrary arrest are prohibited in international human rights instruments, the court observed that the plaintiff’s definition was so broad and vague that it would open the door to any claim predicated on even a slightly problematic arrest. Instead, the court considered that civilized nations have only gone so far as to recognize instances of prolonged arbitrary detention under color of law as a violation of the laws of nations.
In 2013 in Kiobel v Royal Dutch Petroleum, the US Supreme Court for only the second time heard a case brought under the ATS, and in its holding significantly narrowed the scope of its application for international human rights violations. Considering whether a claim could be brought for violations occurring abroad, the court invoked the presumption against extraterritoriality, which states that US laws should not apply in other countries absent an explicit provision to that effect. The court held that the ATS provided federal jurisdiction only to claims that “touch and concern the territory of the United States…with sufficient force to displace the presumption against extraterritorial application,” and that because the defendants were foreign corporations and the harms occurred abroad, this presumption was not overcome.
Finally, in 2018 the US Supreme Court again narrowed the scope of the application of ATS. In Jesner v Arab Bank, the court held that the imposition of liability on foreign corporations is not proper under the separation of powers doctrine, because foreign policy, which is under the domain of the executive branch, would be implicated if foreign corporations were allowed to be sued in US courts.
Re-reviving the ATS
The Kiobel and Jesner decision imposed serious limitation on the option of using the ATS for human rights violations occurring outside US territory, and are thus regarded as the death knell for international human right litigation in US courts. However, this absolutist view fails to consider that human rights violations occur not only abroad, but also on US territory, and that in some of the most egregious instances of human rights abuses, it is foreign nationals who are the victims. One such example can be observed in the treatment of immigrants and asylum seekers.
Human Rights Violations Occurring in Detention Centers
In the first year of his presidency, President Donald Trump garnered national outrage when his policies relating to immigrants and asylum seekers came to light, which included unconditional and indefinite detention, which resulted in overcrowding in detention centers and a practice of separating children from the parents or guardians. These draconian measures undoubtedly resulted in widespread human rights abuses, some of which may even rise to the level of violations of laws of nations.
Although prior administrations’ immigration policies could also be considered harsh, Trump’s policies were unprecedented in their severity and carried undertones of racial discrimination. Two notable policies that led to a spike in human suffering include the mandatory detention of all people with irregular immigration status, including those waiting for their asylum claims to be adjudicated, and a policy of separating children from their parents upon arrival, which has since been enjoined by the courts and formally ended by Executive Order. Tragically, even though the practice of separating children from their parents has for the most part ceased, the Trump administration never had a reunification plan in place, and some children have even been adopted without consent of their parents who have been deported.
These two policies resulted in a humanitarian crisis in US immigration detention centers. As the populations in detention centers began to exceed their capacity, the conditions became increasingly inhumane, including exposure to extreme temperatures, overcrowding, inadequate food, and lack water, sanitation, clothing and medical care. A New York Times exposé draws a picture of extreme suffering inside a detention center in Texas, where child detainees were housed in filthy conditions with inadequate food and no way to clean themselves, outbreaks of scabies, shingles and chickenpox spread rampantly, and beds were removed in order to make room for even more detainees in the already crowded cells. Children separated from their parents are also vulnerable to abuse by State officials, and the New York Times has reported that complaints by children in detention of sexual abuse are on the rise.
A US Department of Homeland Security internal memorandum detailing allegations made by internal whistleblowers describes a number of incidents in which immigration detainees were provided inadequate healthcare, including insufficient treatment for withdrawal from alcohol or substance abuse; lack of psychiatric monitoring; forcible medical injections as a means of behavior control; misdiagnosis of health conditions and serious medical errors; and inadequate care leading to death while in custody. In December 2019, a story broke of the death of a 16-year-old Guatemalan boy that illustrates the horrendous impact of inadequate care. A nurse practitioner determined that because of his high fever he should be monitored regularly, but a recently released video recording shows that he was left alone for hours before his death, during which time he vomited blood, “his body crumpling and squirming in apparent distress,” and that his corpse was only discovered the next morning by his cellmate, lying on the concrete floor by the toilet.
Trump’s migration policies are more than merely a gross mismanagement of the US immigration system; his administration has explicitly stated that the detention and family separation policies are intended to deter migration. In a report, the Department of Homeland Security acknowledges the human suffering caused by prolonged detention, but justify it in the name of deterrence, stating that Border Patrol officials “recognize they have a humanitarian issue with detaining single adults for so long, but believe if they do not have a consequence delivery system, either prosecution or [Immigration and Custom Enforcement] detention, the flow will increase.”
The Supreme Court held in Fong Yue Ting v United States that immigration detention is an administrative procedure and is not meant to be punitive in nature. However, in the past several decades immigration detention centers have become more and more like the prisons and jails of the criminal justice system. In general, average detention of adults is 34 days in most facilities, although some detention centers keep detainees for an average of over 3 months, and about 5% of people in immigration detention have been there for over 4 years. The constitutionality of indefinite detention is currently being litigated in Jennings v Rodriguez. As for minors, although the Flores Settlement Agreement requires children to be released within 20 day, the Trump administration has made efforts to seek their indefinite detention.
Vindicating Rights Using the ATS
The treatment of immigrants and asylum seekers in detention centers in undoubtedly egregious, but in order for victims to bring claims vindicating their human rights under the ATS, they must also constitute violations of the laws of nations.
Crimes against humanity has been recognized as a violation of the laws of nations in ATS litigation. A crime against humanity occurs when a certain underlying crime is committed in the context of a widespread or systematic attack against a civilian population. The attack encompasses any mistreatment of the civilian population and need not be part of an armed attack. While an attack can be defined through unlawful acts such as murder or enslavement, it may also be non-violent in nature especially if orchestrated on a massive scale or in a systematic manner. Underlying crimes for crimes against humanity include, inter alia, murder, imprisonment in violation of international law, rape, torture, persecution, and other inhumane acts of a similar character.
The treatment of migrants in US detention centers could be characterized as a number of crimes against humanity, including persecution. Persecution occurs when a person is deprived of fundamental rights because of his membership in a specific group, such as based on nationality. Acts of persecution must rise to the same level of gravity as other enumerated acts that constitute crimes against humanity but need not also be a crime under international law. Thus, persecutory acts can include harassment, humiliation, psychological abuse, and other types of assault upon personal dignity. Furthermore, to evaluate their gravity, acts should be considered in context by looking at their cumulative effects. Persecution requires specific intent to cause injury to a human being because of his membership in a specific group, but this discriminatory intent can be inferred. When considering whether migrants are subject to persecution as a crime against humanity, the systematic detention in overcrowded and unsanitary conditions of migrants, including vulnerable populations such as children, supports a conclusion that they experience a severe assault on their personal dignity, especially when taking into account that lack of medical care has resulted in severe injury and even death. Other abuses, including sexual abuse, verbal abuse, and substandard provisions of food and water, further support such a finding. Moreover, migrants and asylum seekers are imprisoned pursuant to a concerted policy meant to deter them from arriving in the US, and thus the creation of suffering in the detention centers can be understood as intentional. Most arrive at the US’s southern border, and are of Mexican and Central American nationalities. Trump has explicitly stated his preference for white and European immigrants, and has characterized Latinos as “rapists” and “criminals” who should be kept out of America, thereby showcasing a discriminatory motive behind his immigration policies.
Other potential violations of laws of nations occurring in US immigration detention centers may also be established in the context if immigration detention. The courts have consistently recognized that torture under color of law is a violation of the laws of nations, and it is also a violation of their treaty obligations under the UN Convention Against Torture (CAT). The CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” A group of UN experts has stated that “[d]etention of children is punitive, severely hampers their development, and in some cases may amount to torture.” Also, the Sosa decision regarded that while not all arbitrary detention constitutes a violation of the laws of nations, prolonged arbitrary detention under color of law does. The International Organization for Migration considers that international standards require that the period of immigration detention should be explicit and that upon expiry the immigration detainee should immediately be released. Such period should be justified and should not be excessive or unlimited, and the decision to continue detention should be periodically reviewed. Failing to meet these standards would make detention arbitrary. Considering the fact that some immigration detainees are kept for several months or even years, and that the government at the moment is continuing and even trying to ramp up its practice of indefinite detention, there is an arguable violation of the laws of nations on prolonged arbitrary detention.
Who Is Responsible?
The US government and its officials are responsible for the inhumane treatment of immigrants and asylum seekers, both by designing and implementing draconian policies, and by, in some cases, going beyond explicit policies in the cruel treatment and abuse of people held in detention facilities. However, there is another actor involved as well: private prison companies.
As migration detention practices increased since the 1990s, the US government began outsourcing the management of detention facilities to private companies, including GEO Group and CoreCivic, and by 2017 the private prison and detention industry had grown to be a $5 billion dollar enterprise. Although the model of these prison vary, a private prison typically charges a daily rate per person incarcerated to cover investment and operating costs. ICE issues National Detention Standards that the private prisons are supposed to implement, but as multiple reports, lawsuits, and studies reveal, the actual conditions in private facilities fall miserably short of these standards. Approximately 70% of people in immigration detention are held in private prisons, which are drastically more abusive and unsafe as compared to federally run facilities.
A report co-authored by several American NGOs explains how “GEO Group and CoreCivic are incentivized to make business decision that lead to more people behind bars.” Profits are linked to the number of people in detention and the length of their stay, and some government contracts even stipulate that the government must pay a fine to the prison companies if their populations fall below 70% capacity.
Although in many cases private prison companies operate the prisons and control what occurs within them, many of the harms arising out of violations of laws of nations are principally committed by the State. The US government policies determine how many people are detained and for how long; the for-profit prisons companies merely benefit when their beds are consistently full. Also, although the prison companies manage the facilities, ICE Health Services Corps provides health care to almost half of detainees, and provides medical case management and oversight to the remainder.
Even though the government is the main perpetrator of conduct that contributes to a possible finding of crimes against humanity, torture, or prolonged arbitrary detention, the private prison companies, who not only operate the detentions but also profit enormously off the policies that lead to such harms, are complicit. Aiding and abetting liability is available for claims brought under the ATS, and the courts have held that the laws of nations standard for aiding and abetting should apply (rather than US domestic civil aiding and abetting). The conduct must constitute “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” (Doe v. Exxon Mobil Corp., 654 F.3d 11, 39 (D.C. Cir. 2011)) However, federal circuit courts disagree about the mental standard, some holding that the defendant must have acted “with the purpose of facilitating that violation,” (Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 276 (2d Cir. 2007)) while other require only knowledge. (Doe v. Exxon Mobil Corp., 654 F.3d 11, 39 (D.C. Cir. 2011)) If the purpose standard is applied, the plaintiff need not demonstrate that the defendant had specific intent to injure the specific victims; he need only show that the defendant acted with “the specific purpose [… to] commit the international-law offenses.” Moreover, the defendant need not share a motive with those committing the primary offenses. For example, in In re Chiquita Brands International, a district court in the Southern district of Florida stated that although the defendant was motivated by financial gain rather than the military objective supported by the primary perpetrators, he still had intent to assist the underlying acts. Based on the prison companies actual operation of the detention centers and acceptance of detainees despite lack of capacity, they undoubtedly provide substantial assistance to ICE and the US government’s wrongful acts. In terms of acting with purpose to facilitate the violation, certain measures, including provisions that bed capacity must reach a certain level, support the presumption that they also wish the detention centers to remain full or even over-capacity, regardless of the human suffering, even if their motive it profits rather than deterring migration.
This blog ponders whether a claim brought under the ATS for aiding and abetting the violations of the laws of nations is possible. However, it also highlights that while the ATS may be mostly closed to extraterritorial harms, there are still human rights violations occurring over which the ATS does grant jurisdiction, and thus it should not be abandoned entirely. Considering that the US government’s egregious treatment of migrants currently represents some of the gravest human rights abuses occurring within its territory, an ATS lawsuit lends itself to recognizing these harms as they truly are: violations of international standards of human rights. While the government undoubtedly bears responsibility for these harms, enablers such as private prison companies are complicit in human rights violations when they allow their desire for profits to overshadow their concern for human lives.