Article: Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel

Roxanna Altholz 

University of California, Berkeley, School of Law

October 30, 2013

California Law Review, 2013, Forthcoming

UC Berkeley Public Law Research Paper No. 2347213

Abstract:

For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts’ civil jurisdiction over human rights abuses committed abroad and a small group of victims a modest measure of justice. The Supreme Court’s April 2013 decision to limit the extraterritorial reach of the ATS in Kiobel v. Royal Dutch Petroleum prompted declarations from experts that human rights litigation in the United States is dead. Post-Kiobel legal commentary has focused on doctrinal questions about which claims under the ATS will survive Kiobel and whether transnational tort litigation in state courts is a viable substitute. This article argues that reports about the death of U.S. human rights litigation are an exaggeration.

This article explores the implications of Kiobel for the interests of those most affected by human rights violations – the victims – and identifies strategies for how human rights victims can best use existing legal remedies in the United States to vindicate their rights. First, the article defines a metric to evaluate the significance of U.S. legal strategies from a victim-centered perspective. The metric is based on the most prominent international standards related to victims’ rights – the rights to truth, justice, and reparations.

Second, the article catalogues the multiple legal strategies available in the United States to hold perpetrators accountable for human rights abuses committed abroad. Post-Kiobel, the United States still is the only country in the world where a non-national victim can bring a civil action against a non-national perpetrator for human rights abuses committed on foreign soil. U.S. courts also have extraterritorial jurisdiction over international crimes, such as genocide, war crimes, torture, and the recruitment of child soldiers. Under crime victims’ rights legislation, the foreign victims of these crimes have participatory rights in criminal proceedings. Immigration authorities have denaturalized, deported, and criminally sanctioned hundreds of human rights perpetrators discovered in the United States.

Third, the article looks beyond the mere existence of these formal opportunities to explore how available legal mechanisms can advance the rights of human rights victims. The article uses a victim-centered metric to dissect the myriad of vague and unproven claims about the objectives of human rights litigation and identify concrete opportunities to advance victims’ rights to truth, justice, and reparations through legal advocacy.

Number of Pages in PDF File: 46

Disponível em: <http://ssrn.com/abstract=2347213>. Acesso em 4 dez. 2013.