New Decision on Alien Tort Statute and Non-State Actors

While everyone has been focused on Libya war powers over the last few days, the DC Circuit issued an interesting opinion on Tuesday in an Alien Tort Statute suit (Ali Shafi v. Palestinian Authority) against the Palestinian Authority and the Palestinian Liberation Organization, in which it held that the ATS does not provide jurisdiction for suits against non-state actors for torture or other physical abuse.  The decision is  notable for its cautious approach to the application of the ATS to non-state actors -- which may be a harbinger of the DC Circuit’s approach to the question of corporate liability -- and even more so for Judge Stephen Williams’ concurring opinion, which suggests a novel conceptual framework for recognizing new causes of action under the ATS. The suit had been filed against the PA and PLO by a Palestinian who alleged that he had been detained, beaten, and tortured by PA officials for providing information to Israeli intelligence.  Affirming a district court decision by Richard Roberts, the DC Circuit -- in an opinion by Chief Judge Sentelle, joined by Judges Rogers and Williams -- recites at considerable length the reasons for judicial caution in recognizing new causes of action under the ATS, as set forth in the Supreme Court’s decision in Sosa. The panel did not rule out that the ATS could confer jurisdiction for claims against non-state actors in some cases (noting that Sosa itself recognized that ATS suits could be brought against pirates, who are, of course, non-state actors).  But the panel concluded that to recognize ATS jurisdiction in this suit against the PA and PLO “could open the doors of the federal courts to claims against nonstate actors anywhere in the world alleged to have cruelly treated any alien” and that this “would hardly be consistent with the standards of caution mandated by the Sosa court.” The panel’s very cautious approach to application of the ATS to non-state actors may be some indicator of how the DC Circuit might address the question of corporate liability under the ATS, which a different panel (but that also includes Judge Rogers) is currently considering in Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. argued Jan. 25, 2011). The panel also cites Sosa’s direction of restraint to the lower courts as reason to decline to consider whether Common Article 3 of the Geneva Conventions -- which by its terms applies “in the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” -- applies to the conflict between Israel and the Palestinians taking place in Israel, the West Bank, and the Gaza Strip.  In contrast, the Supreme Court was less cautious in its decision in Hamdan, in which it concluded that Common Article 3 applied to the conflict between the United States and al Qaida, even though that conflict does not occur solely in the territory of a High Contracting Party. Even more interesting is Judge Williams’ concurrence, in which he attempts to identify -- for the first time, to my knowledge -- a “unifying feature” from the three paradigmatic violations of the law of nations identified by Blackstone and cited by the Supreme Court in Sosa, i.e. violations of safe passage, assaults on ambassadors, and piracy.  In Williams’ view, the common theme was an intention to provide legal recourse for violations of international law that might otherwise result in conflicts between states.  Under this theory, ATS actions against foreigners for “violations of the law of nations would be actionable…if they matched piracy as an affront to Westphalian sovereignty itself, or if the foreign perpetrator were linked to the United States by residence or some other feature such that American disregard of the offense might cause serious blame to fall on the United States.” Williams’ theory of ATS jurisdiction is fairly narrow and would presumably rule out ATS jurisdiction in most cases where a foreign national tries to sue his own government for human rights violations, or a corporation alleged to have assisted the foreign government.  But it could leave the door open to cases where a foreign national sues officials of a former government, when the action is supported by the successor government and failure of the US courts to provide jurisdiction might result in foreign policy tension between the new government and the US government.  Perhaps for this reason, Judge Williams concurring opinion elicits a rather blistering separate opinion by Judge Rogers, who accuses Williams of introducing “vague and slippery concepts into ATS analysis.”