Reviving Human Rights Litigation After Kiobel
American Journal of International Law, Vol. 107, p. 858, 2013
Posted: 15 Feb 2014 Last revised: 28 Mar 2014
Date Written: October 1, 2013
This essay proposes a legislative response to Kiobel v. Royal Dutch Petroleum Co. that would preserve some of the benefits of Alien Tort Statute human rights litigation, while minimizing the costs. The legislation would allow human rights victims to bring civil claims against perpetrators in some foreign-cubed cases. However, plaintiffs could not file such claims until after a federal prosecutor filed criminal charges against the perpetrator. This approach would allow federal executive officials to block claims that raised serious foreign policy concerns by choosing not to prosecute. It would also promote a more robust dialogue between federal executive officials and groups representing prospective human rights plaintiffs. The proposed legislation is modeled partly on pending French legislation, as well as existing Belgian and German legislation. Statutes in all three countries share two critical features (assuming the French bill becomes law). Victims of genocide, war crimes, and crimes against humanity have the right to initiate judicial proceedings against perpetrators who committed crimes extraterritorially, including in foreign-cubed cases. Public prosecutors in all three countries can block such judicial proceedings if they determine that a victim-initiated case would impair the state’s foreign policy interests or would otherwise be contrary to public policy. Our proposal is quite modest. Compared to Filartiga and its progeny, it would grant victims a rather limited right of access to federal courts, and only with respect to human rights violations that constitute grave international crimes. However, some limit on victims’ rights is necessary to address the primary policy objection raised by Filartiga’s critics: that human rights litigation under the ATS interfered with the president’s conduct of U.S. foreign policy. If adopted, our proposal would effectively eliminate that objection, preserve meaningful remedies for some human rights victims, and enable the United States to fulfill its time-honored commitment to human rights principles, thereby contributing to a more effective international human rights regime.
The final version of this article was published in the October 2013 issue of the American Journal of International Law, Vol. 107, p. 858, 2013. It is available in print and online at the journal’s homepage.
Keywords: Extraterritorial jurisdiction; universal jurisdiction; Kiobel v. Royal Dutch Petroleum Co.; universal human rights; international law, Alien Tort Statute, civil claims, comparative law, The Rome Statute; Belgian Universal Jurisdiction; French Universal Jurisdiction; German Universal Jurisdiction
Suggested Citation: Suggested Citation