Monday, October 19, 2009

Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.
At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The 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.
The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.
Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

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