Kiobel: A Preview of the Arguments

(Part 2 of a 2-part series; Part 1 is here)

This Monday, October 1, the U.S. Supreme Court will hear reargument in Kiobel v. Royal Dutch Petroleum, on the extraterritorial reach of the Alien Tort Statute. (Prior ATS posts)
Based on the merits and amicus briefs, four issues will likely consume the oral argument; specifically, the:
►  Impact of the Court's 2004 judgement in Sosa v. Alvarez Machain;
►  Presumption against extraterritoriality;
►  Status of universal civil jurisdiction under international law; and
►  Adequacy of existing abstention doctrines.

The Case for Shell
In its supplemental brief, Shell seeks a categorical bar on extraterritorial ATS litigation, one that would foreclose not only actions against corporate defendants, but also actions against individual human rights abusers.
Shell’s case rests on a core assertion that extraterritorial ATS litigation violates foreign sovereignty and international law. The argument relies on two canons of statutory construction:
► First, invoking the presumption against extraterritoriality, Shell argues that courts must not recognize ATS actions for foreign human rights abuses because the ATS does not explicitly say that it applies extraterritorially. Citing to the Court's decision in Morrison v. Australia National Bank (2010) (prior post), Shell contends that this presumption limits a court’s power to recognize a federal common law cause of action, even if the substantive norms derive from international law.
► Second, invoking the Charming Betsy canon – that an ambiguous statute should be construed not to violate international law – Shell argues that the ATS violates international law because it lacks a basis for prescriptive jurisdiction.
Notably, Shell contends that the ATS is not a valid exercise of universal jurisdiction, for the reason that states have only consented to universal criminal jurisdiction, not universal civil jurisdiction. In Shell’s view, universal civil jurisdiction is a greater invasion of sovereignty, since private litigation is not checked by prosecutorial discretion. Harvard Law Professor Jack Goldsmith’s amicus brief for Chevron forcefully argues this point:

'Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.'

The Case for the Kiobel Plaintiffs
In their supplemental brief, the Kiobel plaintiffs argue that Sosa already answered the question of extraterritoriality. Sosa presumed that the ATS applies to abuses overseas: it embraced Filártiga v. Peña-Irala (2d Cir. 1980), and crafted a framework to address concerns of international comity. Shell’s categorical bar nullifies this framework.
Moreover, plaintiffs argue, the presumption against extraterritoriality does not apply to jurisdictional statutes such as the ATS. Even if it did, the statute’s text and history overcome the presumption. As the legal historians brief shows, when Congress enacted the ATS, it clearly intended the law to enforce international norms like piracy, which extended beyond U.S. borders. Indeed, Attorney General Bradford’s 1795 opinion – applying the ATS to actions in Sierra Leone – confirms that the framers understood the ATS to have extraterritorial effect.
The plaintiffs also argue that the ATS’s global reach is fully consistent with international law, as follows:
► First, the ATS exercises “adjudicative jurisdiction” rather than “prescriptive jurisdiction” – the ATS does not legislate regulations and project them overseas; it simply provides a forum to adjudicate international law claims.
► Further, under the S.S. Lotus Case (Permanent Court of Justice 1927) (prior posts), one state’s exercise of jurisdiction is presumed valid, unless it violates a specific prohibitory rule. Shell fails to prove that international law prohibits providing a civil remedy for foreign human rights abuses. To the contrary, international law authorizes universal jurisdiction and obligates states to provide effective remedy.
► Moreover, as Justice Stephen G. Breyer noted in his Sosa concurrence, universal criminal jurisdiction necessarily contemplates universal civil jurisdiction, since many countries allow civil remedies alongside criminal prosecution.
As demonstrated in a brief by the Yale Law School Center for Global Legal Challenges, on which Yale Law Professor Oona A. Hathaway (right) is counsel of record, many civil law countries permit plaintiffs to initiate universal jurisdiction proceedings, much like the ATS. (A few weeks ago, a post by IntLawGrrl Vivian Grosswald Curran outlined the amicus brief she authored, which puts forward further comparative law arguments.)
The brief of U.N. High Commissioner Navi Pillay, for which Santa Clara Law Professor David Sloss is counsel of record, further elucidates:

Navi Pillay

'Retributive and compensatory justice go hand in hand. If international law allowed States to exercise universal criminal jurisdiction over gross violations, while prohibiting them from offering victims compensation for the same violations, this would cut off the second leg of the principle of effective remedy, which universal jurisdiction is meant to protect.'

The U.S. Government Walks the Line
Though it argued for the plaintiffs in Kiobel I, the U.S. government filed an amicus brief on behalf of neither party in Kiobel II.

Path from Kiobel I to Kiobel II: What’s at stake in reargument on Alien Tort Statute & extraterritoriality

(Part 1 of a 2-part series; Part 2 is here)

A week from today, on October 1, the U.S. Supreme Court will hear a second round of arguments in Kiobel v. Royal Dutch Petroleum, a case concerning Shell Oil’s alleged complicity in the torture and killing of environmentalists in Nigeria.
The Center for Justice and Accountability, the San Francisco-based nongovernmental organization for which I serve as Executive Director, has filed two amicus briefs on behalf of the petitioners:
► A brief on extraterritoriality; and
► A brief on corporate liability.
We've also put together a number of resources on the case, including an overview, a complete docket of all the briefs, and summaries of key amicus briefs.(IntLawGrrls' prior posts on this case are available here.) In today's post, I first recall the path by which Kiobel became a case about extraterritoriality, and then discuss how an adverse ruling on that question could foreclose valuable assistance to survivors of human rights abuses. In a post later this week, I'll preview the oral arguments set for October 1 and recap highlights from the scores of briefs that have been filed.

Kiobel as a corporate liability case
As many IntLawGrrls readers will recall, the initial question, in what we're now calling Kiobel I, was whether corporations could be sued under the Alien Tort Statute for violations of international law. (On the ATS' anniversary today, see the post below.) In the U.S. Court of Appeals for the Second Circuit, a divided panel had held in 2010 that the ATS did not permit tort actions against corporations for human rights abuses. In so doing, it invoked a novel theory that international law binds only states and individuals, not legal entities.
But on February 28 of this year, Supreme Court oral argument in Kiobel I turned to a broader question: whether victims of foreign atrocities can continue to bring ATS actions against perpetrators or accomplices present in the United States.
A week later, the Court ordered reargument on the extraterritorial reach of the ATS.

Extraterritoriality in Kiobel I
Extraterritoriality was the road not taken when the Supreme Court last visited the ATS. In Sosa v. Alvarez-Machain (2004), the question was whether the ATS was a “stillborn” jurisdictional statute, and if not, which violations were actionable. The Court held that the ATS allowed the adjudication of a narrow set of common law tort actions, derived from international law norms defined by their specificity and universal recognition. In Sosa the Supreme Court endorsed Filártiga v. Peña-Irala (1980), the landmark decision in which the Second Circuit had recognized that torture in Paraguay was actionable in federal court under the ATS.
Like Kiobel, Sosa was extraterritorial – Álvarez-Machaín was a Mexican national, kidnapped in Mexico by a former Mexican official. The Sosa Court refused to adopt a categorical bar on extraterritorial ATS suits, a bar that had been proposed in the brief of the Bush Administration. Instead, the judgment in Sosa limited the ATS’s scope to universal human rights norms – norms that were already binding in the territory of foreign states. Sosa’s framework was designed to address comity concerns in ATS litigation, and would make little sense if the ATS were limited to U.S. territory.

Kiobel reprises the question of extraterritoriality.
The issue had been argued in the alternative in the merits brief for Shell (on which former Stanford Law Dean Kathleen Sullivan (right) is counsel of record). Extraterritoriality took center stage in the amicus brief for Chevron et al., by Harvard Law Professor Jack Goldsmith, and in the amicus brief for BP et al., by and John B. Bellinger III and Paul Clement, respectively, the former State Department Legal Adviser and the former U.S. Solicitor General.
These briefs make three basic claims:
► First, that the presumption against extraterritoriality requires construing the ATS to apply only to actions arising in U.S. territory or perhaps on the high seas.
► Second, that international law does not allow courts in one country to exercise universal civil jurisdiction over offenses committed by a foreign sovereign against its own nationals, in its own territory.
► Finally, that giving the ATS extraterritorial reach causes diplomatic friction.
Those claims caught the Court’s attention.

Measure of justice in Salvador massacre case

(credit for photo of march in memory of the slain Jesuits)

I am pleased to share the recent news about the quest for accountability for human rights atrocities committed against the Salvadoran people – a quest long pursued by the Center for Justice and Accountability, for which I serve as Executive Director.
Earlier this month, on September 11, Colonel Inocente Orlando Montano pleaded guilty in federal court in Boston to six counts of criminal immigration fraud and perjury. He is one of four high commanders of the Salvadoran military who has been indicted by the Spanish National Court for the 1989 massacre of six Jesuit priests, their housekeeper and her daughter. As a result of his guilty plea, he will likely be serving a sentence in U.S. federal prison while he awaits extradition to Spain on the murder charges. Montano's sentencing is currently set for December 18 of this year.
The brutality of the former military regime in El Salvador, and the broad amnesty the military enjoyed, are counterpoints to the bravery of CJA's many friends and colleagues who fled to the United States as refugees or remained in their own country as courageous opponents.
We have brought three successful civil cases in the United States against high-level Salvadoran human rights abusers, in addition to our groundbreaking criminal case in Spain, which resulted in the indictment and extradition requests for those who ordered and carried out the murder of the Jesuits and the two women. The Spanish National Court has filed formal notice of its request for extradition, which is now pending before the U.S. Department of Justice.
Our investigative efforts on behalf of the families of the Jesuits led to our discovery that Colonel Montano was living in Boston, and we alerted U.S. authorities. The fact that Montano has pleaded guilty helps bolster Spain's pending request to have Montano extradited to Spain. As CJA Senior Legal Adviser Carolyn Patty Blum, another IntLawGrrls contributor, explained to the Boston Globe, the plea creates "fertile ground" for the United States to move forward on the extradition. Needless to say, we will do everything within our capabilities to ensure that happens.

10th anniversary of the "Torture Memos"

Today, August 1st, marks the 10th anniversary of the infamous "Torture Memos" written by John Yoo, Steven G. Bradbury, and Jay Bybee, who were officials in the Office of Legal Counsel under the Bush Administration. As described in previous IntLawGrrls posts available here, these memos provided a legal framework for the torture of detainees held by the CIA in connection with the "War on Terror."
The contents of the memos are spine-chilling. Government lawyers employed strained legal reasoning to eviscerate the definition of torture under international and domestic U.S. law. In effect, these memos gave the imprimatur of the U.S. Justice Department to abhorrent and illegal acts. The memos authorized interrogators to slam a prisoner's head against a wall repeatedly; to deprive prisoners of sleep for eleven days at a time; and to subject prisoners to 'waterboarding,' a technique of controlled suffocation that was used extensively by the Spanish Inquisition and by the Khmer Rouge during the genocide in Cambodia. As a result of these legal opinions, one prisoner was waterboarded 183 times.
In one of the memos Bradbury, then Principal Deputy Assistant Attorney General, opined on what constitutes "prolonged mental harm" as a result of torture. He juxtaposed waterboarding, which is used to "induce a sensation of drowning," with the game of Russian roulette. I have always found this analogy striking, given the facts of cases litigated by the Center for Justice & Accountability, for which I serve as Executive Director. Kemal Mehinovic, Muhamed Bicic, Safet Hadzialijagic and Hasan Subasic, our clients, were subjected to Russian roulette while being held in a Bosnian detention camp in 1992. Clients in other cases have endured waterboarding. Strangely, Bradbury concludes that waterboarding is an acceptable form of torture, but Russian roulette is not. Needless to say, CJA's clients would disagree.
When the memos were declassified and rescinded three years ago, President Barack Obama stated that he believes strongly in "transparency and accountability." Certainly, transparency is a virtue, but transparency alone will not serve to deter torture unless it is followed by accountability.
To that end, we at CJA request that the Senate Select Committee on Intelligence report due to be completed this summer – which examines the CIA interrogation program authorized by the "Torture Memos" – be made public, with the fewest redactions possible.
The American public deserves to know the truth.
We and others in the human rights community also are calling on Congress and the Obama administration to set up a nonpartisan truth commission with the authority to investigate and, if warranted, recommend prosecution of U.S. officials responsible for torture. Held responsible should be the interrogators who committed torture, the lawyers and senior officials who authorized torture, and the medical personnel who oversaw torture. President Obama needs to stand by his words and take this important step in holding U.S. officials accountable for their actions.
Investigating torture is not only our moral duty: it is our legal obligation. When the U.S. Senate ratified the Convention Against Torture in 1994, we committed ourselves as a nation not only to refrain from torture but to prosecute perpetrators when there is evidence of a crime.
It is in this spirit that we ask our President and Congress stand up for not just transparency when it comes to torture, but accountability as well.

Look On! Film featuring IntLawGrrls - PBS tomorrow

(Look On! takes occasional note of noteworthy productions.)

A 2011 documentary about the quest for human rights accountability in Guatemala makes its television début this Thursday.
Titled Granito: How to Nail a Dictator, the film was made by IntLawGrrls contributor Pamela Yates. As she described it in a prior IntLawGrrls post, Granito, which refers to the "grain of sand" contribution that every person can make to social change,

'is part political thriller and part exploration of a strange intersection of law and art. It’s a story of dark deeds, juxtaposed with the inspiring power of collective action in a quest for justice. It’s the story of intertwined destinies, and a love letter to the next generation of human rights filmmakers.'

It is, specifically, the story of how a genocide case was built against Guatemala's President, General Efraín Ríos Montt. In addition to Pamela's pivotal interview of the general, there was much hard work by IntLawGrrl Naomi Roht-Arriaza, an Advisory Council Member at the San Francisco-based Center for Justice & Accountability, as well as Almudena Bernabeu and others at CJA, a nongovernmental organization whose Executive Director is another IntLawGrrls contributor, Pamela Merchant.
Proceedings against Ríos Montt continue, as Naomi posted not long ago.
On many PBS stations Granito will air at 10 p.m. this Thursday, June 28 (check local listings here), and it will also be viewable online here this Thursday and Friday through July 28 August 20, 2012.

Supreme Courts limits Torture Victim Protection Act

The U.S. Supreme Court has ruled that the Torture Victim Protection Act does not impose liability against organizations for acts of torture and extrajudicial killing.
Yesterday's decision was issued in Mohamad v. Palestinian Authority, a case filed by a U.S. citizen who was arrested by Palestinian Authority intelligence officers, imprisoned, tortured and ultimately killed.
The Court found that the term “individual," as used in the TVPA, only encompasses natural persons and, as a result, does not impose liability against any organizations. Justice Sonia Sotomayor, writing on behalf of a unanimous Supreme Court, stated in the concluding paragraph:

'The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this Branch to do otherwise.'

Crucially, the Court noted that the TVPA still imposes liability on natural-person defendants, including "officers who do not personally execute the torture or extrajudicial killing" but who issue "an order to torture or kill." Citing Chavez v. Carranza – a case that was litigated by the Center for Justice & Accountability, for which I serve as Executive Director – the Court thus reaffirmed that political and military leaders can be liable for their subordinates’ abuses.
We cannot underestimate the importance of ensuring that victims have the right to seek redress and accountability against paramilitary organizations, corporations, and any other entities that are responsible for severe human rights abuses. Human rights crimes are almost always designed, orchestrated, financed and supported by states, organizations, corporations and other non-natural persons.
CJA's clients, all of whom are survivors of torture and other human rights abuses, are often the victims of atrocities committed by paramilitary organizations. The reality on the ground in countries where human rights atrocities flourish is that they are often committed by paramilitary and other organizations.
For example:
► In Doe v. Constant, CJA represents plaintiffs who were targeted by FRAPH (Revolutionary Front for the Advancement and Progress of Haiti), a notorious death squad and paramilitary organization that operated under Haiti’s 1991-1994 military regime. FRAPH brutalized pro-democracy activists employing extrajudicial killings, enforced disappearances, arson, rape, and other forms of torture. Their signature atrocity was the use of sexual violence to punish and intimidate women for their perceived political sympathies or associations. (credit for above left CJA photo of Haitian soldier and civilians)
► Similarly, our clients in Cabrera v. Jiménez Naranjo (aka Macaco) are victims of one of the most violent paramilitary forces in the Americas, the United Self Defense Forces of Colombia (known as the AUC). Since the 1980s, 70,000 civilians have been killed in an internal armed conflict in Colombia. The AUC is responsible for the vast majority of these civilian deaths as well as the forced displacement of millions. Our clients are the surviving families of two civil society activists in Colombia, both members of the Program for Peace and Development in the Middle Magdalena, who were brutally killed by AUC paramilitary forces.

Guest Blogger: Carolyn Patty Blum

It's IntLawGrrls' great pleasure to welcome Carolyn Patty Blum (left) as today's guest blogger. (photo credit)
Patty is a Lecturer-in-Law at Columbia Law School in New York City and also the Senior Legal Advisor for the Center for Justice & Accountability, the San Francisco-based nongovernmental organization for which IntLawGrrls' guest/alumna Pamela Merchant serves as Executive Director. A key member of the legal team in CJA’s El Salvador and Chile cases, Patty now works as a consultant for CJA.
In her guest post below, Patty discusses the beginning of U.S. removal proceedings -- set to resume later this month -- against a Salvadoran ex-general alleged to have been complicit in human rights violations during the protracted civil war in El Salvador.
Patty served from 1998 to 2002 as the founding Director of the International Human Rights Law Clinic at the University of California, Berkeley, School of Law, and is a Clinical Professor of Law Emerita of that law school. She's been involved in a range of human rights policy and legal issues, including trafficking in women, the rights of migrant workers, and the protection of women and gay refugees.
Other NGOs for which Patty's served as a consultant are the International Center for Transitional Justice and the Center for Constitutional Rights, both based in New York.

Heartfelt welcome!

2d round nears in Salvadoran removal case

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post)

U.S. proceedings seeking the deportation of Carlos Eugenio Vides-Casanova are set to resume in another week.
As IntLawGrrls guest/alumna Pamela Merchant has posted, the Department of Homeland Security has sought to deport Vides on charges of assisting or otherwise participating in torture. (See Immigration and Nationality Act § 237(a)(4)(D), 8 U.S.C. § 1227(a)(4)(D) (2006), referring to INA § 212(a)(3)(E)(iii)(I), 8 U.S.C. § 1182(a)(3)(E)(iii)(I).) This trial marks the first time that DHS has used the Immigration and Nationality Act removal provisions respecting torture against a senior level commander.

The removal hearing began on April 18 in Orlando, Florida.

Government's case
► DHS called as its first witness Robert White, who had served as U.S. Ambassador to El Salvador (in red at left) from March 1980 to early 1981. (map credit)
Providing Immigration Judge James K. Grim a flavor of El Salvador at the time, White recalled that bodies were visible in the streets and that, in December 1980, he watched as the remains of the assassinated four U.S. churchwomen were being exhumed from a shallow grave. White said that he met numerous times with Vides, then Director of the National Guard, to discuss putting an end to human rights abuses.
Vides' lawyer, Diego Handel, attempted to develop a counternarrative through White’s cross-examination; specifically, that U.S. support gave the Salvadoran military an implicit "green light" to stop the Salvadoran opposition, by any means necessary. But White replied that in reality, U.S. policy was to the contrary:

'Had a political solution been pursued by El Salvador in 1980, as I and the U.S. Government recommended, ten years of conflict could have been avoided.'

► Next on the stand was Daniel Alvarado. Alvarado is a client of the Center for Justice & Accountability, the San Francisco-based nongovernmental organization for which I serve as Senior Advisor, in a civil case against former Salvadoran official Nicolas Carranza. While a student activist in August 1983, Alvarado testified, he was abducted by the Treasury Police. At that time, Carranza was Director of the Treasury Police, and Vides was Minister of Defense. Alvarado was tortured until he falsely confessed to the murder of a U.S. military advisor. But the U.S. Embassy doubted the veracity of Alvarado's confession. When the truth eventually emerged, the U.S. ambassador asked Vides to ensure Alvarado's safety; instead, Vides left him detained for over two more years.
On cross-examination, Vides' lawyer’s unsuccessfully tried to paint Alvarado and his political affiliations with the guerrilla brush.
► Also testifying was Dr. Juan Romagoza, CJA's lead plaintiff in Romagoza et. al. v. Garcia and Vides-Casanova, an Alien Tort Statute case against Vides. Romagoza provided medical care at community clinics in rural El Salvador. He testified that on December 12, 1980, as residents were lining up at a church for medical consultations, troops from the Army and National Guard, accompanied by men in plain clothes, arrived. The military opened fire, wounding Romagoza and others. Romagoza was captured and eventually transported to National Guard headquarters in San Salvador, where he was held for several weeks and tortured. At one point, Romagoza testified, Vides entered Romagoza’s cell during a torture session. And Vides was again present when Romagoza was released, emaciated and struggling to walk.

On cross-examination, Vides' lawyer, Handel, focused on minor discrepancies between Romagoza’s testimony in the prior Alien Tort Statute case and in the present removal case. But it did not appear that Handel scored any points with Grim, given that the judge stepped in personally to question Romagoza in order to obtain clarification of certain points. Handel also attempted to undermine Romagoza's identification of Vides in his cell. Romagoza had been chained to a cement floor, cleaned the day before for the visit of the "boss." According to him, his captors’ blows had loosened his blindfold and he was able to see Vides from the lower portion of his face on down. He also recognized Vides’ voice.

► DHS also called Dr. Terry Karl (right), the Gildred Professor of Latin American Studies and Professor of Political Science at Stanford University, as an expert witness. (photo credit) Karl described El Salvador’s long history of military control and the 1979 coup, which was intended to be a progressive turn but which ultimately ended with hard-line military officers, such as Vides, gaining power. Vides and other right-wing military officials ascribed to a theory of “total war,” Karl testified; they targeted teachers, doctors, members of opposition organizations, labor leaders, and the like for assassination and disappearance. According to Karl, U.S. officials, including General Wallace H. Nutting and Secretary of State George P. Shultz, were dispatched to El Salvador to meet with Vides to demand a stop to the repression and punishment for known abusers. When Vides failed to respond, George H.W. Bush (left), then the U.S. Vice President, arrived in El Salvador with a list of suspects and a call to rein in the violence. (credit for 1981 photo)

For a time, the level of violence did decrease. Karl testified that this constituted evidence of Vides’ capacity to control the military and death squad killings. Nonetheless, the levels rose again through the 1980s. Impunity, said Karl, was a key factor in prolonging the abuses. She cited examples in which Vides sheltered suspected perpetrators and ordered sham investigations. Vides, she testified, told a U.S. Ambassador that a military official accused of killing two Americans and a Salvadoran land reformer in the “Sheraton murders” was “a really good guy.”

Karl testified that in her opinion, Vides' pattern of conduct — which, she said, included his promotion and his protection of known human rights abusers, his failure to inspect and close down torture chambers, his obstruction of investigations, his refusal to dismantle death squads, and his personal visitation of prisoners undergoing torture — constituted active participation in torture.

On cross-examination, Handel asked Karl to comment on passages from U.S. State Department Country Reports from 1983 onward that were favorable to Vides. Handel focused on the U.S. military presence in El Salvador, and read language from the U.S. certification of military aid prepared for Congress. In response, Karl reiterated Ambassador White's assertions that U.S. military training and support failed to stop human rights abuses.
► At the end of the government's case, the defendant moved to terminate, arguing the government lacked reliable evidence. Handel further argued that Schneider v. Kissinger, the 2005 decision in which the U.S. Court of Appeals for the District of Columbia Circuit dismissed a tort case on political question grounds, required dismissal of the government’s removal case against Vides. The judge temporarily denied the motion, deferring a final decision until the end of the proceedings.

General Vides' case
► Vides then called his first witness, David Passage, who had been Acting U.S. Ambassador to El Salvador from mid-1984 to 1986, retired from the State Department in 1998, and is now an External Researcher with the Strategic Studies Institute of the U.S. Army War College. Passage testified that El Salvador saw dramatic improvements during his tenure. He stated that Vides was receptive to change and expressed concern for human rights. However, after a contentious exchange over qualification as an expert, Judge Grim ruled that Vides' lawyer had failed to establish Passage's expertise. The former ambassador thus was limited to testifying on information within his personal knowledge during his two years in country.

On cross-examination, DHS attorney Jim Craig queried Passage about the UN Truth Commission's findings of torture persisting throughout the 1980s, documentation that contradicted Passage's testimony that human rights abuses has been radically reduced in El Salvador. When Passage expressed his disagreement with the Truth Commission findings, Craig produced a declassified diplomatic cable signed by Passage. The cable indicated that during Vides’ term of office as Director of the National Guard at the time of the Sheraton murders, death squads were operating out of the intelligence section of the National Guard. Another Passage cable indicated that under Vides' leadership, the military had not followed up on an investigation into the Las Hojas massacre.
► Vides next called retired U.S. Ambassador Edwin Corr, who explained that he had been brought to El Salvador to “clean the place up.” Corr emphasized his good relationship with Vides Casanova during his posting, which lasted from 1985 to 1988. Corr testified that the alleged decrease in human rights violations in the second half of the 1980s was a result of the U.S. emphasis on a new counterinsurgency strategy. Human rights violations needed to be reduced, he stated, because they only aided the guerrillas.

Upcoming proceedings
With that, the hearing adjourned. The government’s cross-examination of Ambassador Corr has been deferred until May 24, when a further, two-day hearing is scheduled.
Vides also is expected to take the stand in that proceeding.

(See IntLawGrrls prior coverage on litigation involving human rights abuses in El Salvador here and here. Updates on the trial in Florida are available here. See related coverage here and here.)

Deportation hearing against Salvadoran

(Delighted to welcome back alumna Pamela Merchant, who contributes this guest post)

Two clients of the Center for Justice and Accountability are scheduled to testify today in a deportation proceeding against a Salvadoran who has been charged with assisting or otherwise participating in the commission of acts of torture while he was El Salvador's Minister of Defense and a military general.
The clients, Dr. Juan Romagoza and Daniel Alvarado, represented by CJA lawyers Almudena Bernabeu and Carolyn Patty Blum, will appear in the Orlando, Florida, courtroom where the case is being heard against Eugenio Vides Casanova, charged with actions, done between 1979 and 1989 in El Salvador, that violate § 237(a)(4)(D) of the Immigration and Nationality Act.
It was eleven years ago that CJA, along with pro bono co-counsel from Morrison & Foerster and James K. Green, brought a human rights case against Vides Casanova and another Salvadoran general on behalf of our courageous clients, Neris Gonzalez, Carlos Mauricio, and Dr. Juan Romagoza. As IntLawGrrl Beth Van Schaack has written in posts available here, after a jury trial, the generals were ordered to pay $54.6 million to our clients for their role in their torture and other human rights abuses. The verdict was upheld by the U.S. Court of Appeals for the 11th Circuit in 2006.
Testimony expected in today's proceeding:
►Juan Romagoza will tell about the torture he suffered in the National Guard Headquarters during Vides' tenure as its Director.
►Daniel Alvarado, one of our clients in the lawsuit against former Vice Minister of Defense Nicolas Carranza, will testify about his torture while Vides was Minister of Defense.
►The government will also call Ambassador Robert White and Stanford University political scientist Terry Karl, both of whom testified in all four of CJA's Salvadoran cases.
Since the 2002 trial victory, CJA, the nongovernmental organization for which I serve as Executive Director, has been pushing the U.S. government to initiate a deportation case against the two generals, both of whom are lawful permanent residents of the United States.
In 2007 and again in 2009, Juan Romagoza and I testified before the Senate Judiciary Subcommittee on Human Rights and the Law. We demonstrated that Generals Garcia and Vides Casanova continued to enjoy safe haven in Florida. Senators Richard Durbin (D-Illinois) and Tom Coburn (R-Oklahoma) sent a series of letters to the Department of Justice and the Department of Homeland Security, asking why Generals Vides Casanova and Garcia continued to live freely in this country.
The importance of this deportation proceeding -- described yesterday in a New York Times story by Julia Preston -- cannot be overstated. It marks the 1st time that the Department of Homeland Security has used the new statutory provisions on torture against senior level commanders. The immigration judge's decision will hinge on important issues of law and fact. It can be anticipated that whatever the outcome, the case will be appealed to higher levels, and will set crucial precedent to be used in future cases against senior commanders for their role in allowing human rights abuses to be committed.
What is most crucial, from the perspective of CJA and our clients, is that the removal of Vides Casanova from the U.S. would represent the successful use of one more tool in the accountability arena and brings us one step closer towards justice for Salvadorians. This is why CJA has expended significant resources for legal reform and advocacy with the U.S. government, and support for our clients who are in Florida today to testify.

Go On! AI annual meeting in San Francisco

(Go On! is an occasional item on symposia and other events of interest)

Amnesty International USA will host its Annual General Meeting this weekend, March 18-20, in San Francisco. Registration details here; full agenda here. (photo at right is from last year's meeting)
Amnesty is convening a special session for human rights lawyers on Friday, March 18 at the Fairmont Hotel, 950 Mason Street, from 9 a.m.-4 p.m. The event is free, but registration is recommened. Topics will include:

• the Foreign Sovereign Immunities Act,


• the Torture Victims Protection Act,


• the Alien Tort Statute,


• corporate accountability for complicity in human rights violations, and


• applying actions from international human rights mechanisms in U.S. courts.

Here is the full schedule:

9:00 – 9:30 Welcome and Opening Remarks: Jessica Carvalho Morris (left), Vice-Chair AIUSA Board of Directors and Director of the International and Foreign Graduate Programs, University of Miami School of Law
9:30 – 11:00 Civil Actions to Hold Human Rights Violators Accountable: Successes, Obstacles, and Future Challenges

• William S. Dodge, Professor of Law at the University of California’s Hastings College of the Law

• IntLawGrrl Chimène Keitner, Associate Professor of Law at the University of California’s Hastings College of the Law (right)

• Andrea Evans, Litigation Director, Center for Justice and Accountability (left)

11:00 – 12:30 No Safe Haven: Criminal and Administrative Enforcement

• IntLawGrrl Pamela Merchant, Executive Director, Center for Justice and Accountability (left, at podium)

• IntLawGrrl Beth Van Schaack, Associate Professor of Law, Santa Clara University School of Law (below left)

• Theresa Harris, AIUSA Board of Directors and Executive Director of the World Organization for Human Rights USA (right)

12:30 – 2:00 Lunch

2:00 – 3:30 Corporate Accountability: Emerging Standards

• Paul Hoffman, Schonbrun, Seplow, Seplow, Harris, Hoffman & Harrison, LLP

• IntLawGrrl Natalie Bridgeman Fields, Founder and Executive Director of Accountability Counsel (right)

• Morton Winston, Founding Chair of the AIUSA Business & Human Rights Group

3:30 – 4:00 Discussion and Closing Remarks

Hope to see you there!

Samantar accountability advances

(Delighted to welcome back IntLawGrrls alumna Pamela Merchant, who contributes this guest post)

I am pleased to update you on a recent development in Yousuf v. Samantar, a human rights case that five survivors of torture brought in 2004 against General Mohamed Ali Samantar, who was Minister of Defense in Somalia (left) during the brutal Siad Barre regime.

On February 15th, the U.S. District Judge Leonie M. Brinkema ruled that this former Somali offical is not immune from suit.

This ruling in the Eastern District of Virginia clears a legal hurdle that we have been contesting for years, including at the U.S. Supreme Court.

Last June, the Supreme Court held that General Samantar was not entitled to immunity under the Federal Sovereign Immunities Act, but left open the question of whether he is entitled immunity under the common law. (Prior IntLawGrrls posts available here.) Last month's district court ruling settled that question by deferring to a statement from the State Department which unequivocally declared that General Samantar is not entitled to any immunity from suit.

The intervention in the Samantar case by the State Department is particularly significant because the United States only occasionally intervenes in litigation, and very rarely intervenes to claim that a defendant is not entitled to immunity.

The ruling ensures that our march towards accountability will continue. To learn more about the case, filed by the San Francisco-based Center for Justice & Accountability, for which I serve as Executive Director, and pro bono co-counsel Akin Gump Strauss Hauer & Feld LLP, please click here.

Teeing Up ECCC Case 002

The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently filed the Closing Order for Case 002 indicting four defendants for international crimes allegedly committed during the Khmer Rouge era (1975-1979). The four defendants in question, who have been in pre-trial detention since 2007, are the surviving members of the Khmer Rouge Central Committee and/or Standing Committee:
► Ieng Sary (former Deputy Prime Minister for Foreign Affairs) (left),
► Khieu Samphan (former Chair of the State Presidium) (below right),
► Nuon Chea (former Chair of the People’s Representative Assembly and the Khmer Rouge’s chief ideologue) (below left), and
► Ieng Thirith (former Minister of Social Affairs and Ieng Sary’s wife) (below right).
As a result of the Closing Order, which officially ends the formal investigation by the Co-Investigating Judges, the four defendants will be tried for crimes against humanity, grave breaches of the Geneva Conventions, genocide, and offenses under the 1956 Cambodia Criminal Code. In light of the enormity of the crimes committed by the Khmer Rouge, the Co-Prosecutors in their 2007 Introductory Submission asked the Co-Investigating Judges (“CIJs”) to focus their investigation on specific crimes in specific sectors, including:

• the multiple displacements of the population;
• the establishment of abusive cooperatives and worksites;
• the “re-education” of “bad elements” and the elimination of "enemies” in security centers and execution sites;
• crimes against particular minorities in Cambodia (including Cham Muslims, those of Vietnamese descent, Buddhist adherents, and individuals affiliated with prior regimes);
• and the “regulation of marriage,” which concerns forcible marriage and sexual relations as discussed here.

The overarching theory of the cases is that the Khmer Rouge used these criminal means to implement its revolutionary project. The Closing Order notes:

Whilst the existence of an ideological project cannot, as such, be considered to be a legal element of crimes against humanity, the implementation of the plan adopted, by criminal means in the case in point by the [Khmer Rouge] authorities demonstrates the widespread and systematic character of the attack.

As we've seen in a number of such cases, the CIJs invoke crimes against humanity as an umbrella charge to cover a range of abuses. The murder and extermination charges stem from purges of Khmer Rouge enemies (such as members of the prior regime) and killings committed at security centers and execution sites. Starting in 1977, the killing of members of the Vietnamese and Cham communities reached a scale so as to qualify as extermination as well as genocide. In addition, the CIJs imply that the charged persons could be convicted for extermination for the high numbers of deaths resulting from the large-scale population movements as well as the conditions of life in the security centers.
Enslavement, imprisonment and torture charges stem mainly from abuses at worksites, cooperatives, and security centers. At these sites, Khmer Rouge staff exercised

total control and all of the powers attaching to the right of ownership over the persons placed there . . . .

The infringements on freedom in the worksites and cooperatives also deemed to constitute imprisonment. Deportation charges concern persons of Vietnamese descent forced to leave Cambodia after the Khmer Rouge came to power.
Evolving patterns of persecution on political grounds (against intellectuals, individuals associated with the prior regime), religious grounds (against members of the Cham community and adherents to Buddhism), and racial grounds (against people of Vietnamese descent) involved grave violations of fundamental rights recognized under customary or conventional international law. The charge alleging the commission of other inhumane acts through attacks on human dignity encompasses everything from deprivations of food, shelter, medical care, sanitation etc. during the population movements to the condition of life at worksites. The rape charges stem from the arrangement of forced marriages, which are also charged as other inhumane acts.
The Co-Investigating Judges have already determined the admissibility of over two thousand Civil Party applications (of over four thousand filed). Other applications were rejected primarily because the Civil Parties did not allege acts falling within the situations under investigation, and a number of these are under appeal. The Civil Parties whose applications were deemed admissible include forty-one victims based in the United States who are represented by the Center for Justice & Accountability, a human rights law firm based in San Francisco, led by IntLawGrrl guest/alumna Pamela Merchant, which has heretofore focused on Alien Tort Statute/Torture Victim Protection Act litigation.
There is no question that these defendants were high-level figures within the Khmer Rouge, responsible for launching a radical and ultimately disastrous revolutionary program. Case 002 will determine the extent to which they can be held responsible for the crimes committed in connection with implementing this project throughout the country given that mid-level cadre may have had considerably discretion in to how to best advance the revolution.
To date, all these defendants have either denied their knowledge of or involvement in abuses by their subordinates or laid responsibility at the feet of their dead compatriots, Pol Pot (“Brother Number One”) (right) or Ta Mok (head of the Revolutionary Army of Kampuchea) (above left).

Stay tuned!

For a longer discussion of the Closing Order, see my ASIL Insight.

Prizing human rights

An institution established in memory of a Nuremberg prosecutor is seeking prize nominees.
Institution:
The Thomas J. Dodd Research Center, dedicated in 1995 at the University of Connecticut. The Center's namesake is Thomas J. Dodd, who began his career in the U.S. Department of Justice and went on to serve as a senior prosecutor at Nuremberg (right), cross-examining defendants in the Trial of the Major War Criminals and serving too in subsequent Nuremberg proceedings. (photo credit) Dodd, born in 1907, was a Democratic U.S. Senator from Connecticut from 1959 until a few months before his death in 1971; his children include the retiring senior Senator from Connecticut, who published his father's Letters from Nuremberg (2007), as well as a former U.S. Ambassador.
Prize:
The Thomas J. Dodd Prize in International Justice and Human Rights, awarded biennially by the University of Connecticut "to an individual or group who has made a significant effort to advance the cause of international justice and global human rights." Previous winners (here and here): 2003, Bertie Ahern and Tony Blair, then Prime Ministers of Ireland and Britain, respectively; 2005, Louise Arbour (left), then U.N. High Commissioner for Human Rights, and former South African Constitutional Court Justice Richard J. Goldstone, like Arbour a onetime Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; 2007, the Center for Justice & Accountability, of which IntLawGrrls guest/alumna Pamela Merchant serves as Executive Director, and Mental Disability Rights International, last month renamed Disability Rights International; and 2009, the Committee to Protect Journalists.
To nominate a worthy individual or group for this monetary prize (no self-nominations accepted), complete and submit the form available here. Deadline is December 31, 2010.

U.S. Supreme Court soon to hear Somalia human rights case

(IntLawGrrls welcomes this guest post from our guest/alumna Pamela Merchant)

At the start of its new Term this month, the U.S. Supreme Court announced that it will hear arguments in Case No. 08-1555, Samantar v. Yousuf. The decision represents a 1st for the nongovernmental organization that I head, the San Francisco-based Center for Justice and Accountability.

In 2004, CJA and and pro bono co-counsel at the law firm of Cooley Godward Kronish sued Somali General Mohamed Ali Samantar on behalf of 4 Somali men and 1 Somali woman. The complaint, based on the Torture Victim Protection Act and filed in the the U.S. District Court for the Eastern District of Virginia, accused Samantar of a wide range of human rights abuses, including torture, extrajudicial killing, and war crimes, committed during the regime of Siad Barré during the 1980s. Samantar was Somalia's Minister of Defense from 1980 to 1986 and Prime Minister from 1987 to 1990; he now resides in Fairfax, Virginia.

This past January, the U.S. Court of Appeals for the Fourth Circuit reinstated the suit, thus reversing the district court's 2007 dismissal.

Here's the issue before the Supreme Court:

Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

To date, no person has ever been held legally responsible for the abuses committed by the military government against the civilian population of Somalia in the 1980s.

The Supreme Court's decision to hear Samantar represents a key point in CJA's struggle to combat the recent rise of immunity defenses to avoid accountability in human rights cases. Given the fact that the Supreme Court takes only 80 cases per year, we were surprised that a CJA human rights case made it to the top of the docket. Having said that, we are confident that we prevail and that our clients will ultimately have their day in court.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

In Spain, jurisdiction won't be truly universal

(Thanks to IntLawGrrls for giving me this opportunity to contribute this guest post and my transnational foremother dedication.)

The bill that would restrict universal jurisdiction in Spain, about which IntLawGrrls have posted here and here, constitutes an important setback in the Spanish contribution to the fight against impunity.
Why the setback?

A number of factors that have paved the way for the reform of Spanish legislation:

► The concerns of some about the ongoing dozen cases being investigated by Spain's Audiencia Nacional, cases through which it plays a role as, effectively, a universal court;

► Political pressure from states like China and Israel; and

► The path taken by the European Union to come to terms with the African Union, as reflected in the April 2009 AU-EU Expert Report on the Principle of Universal Jurisdiction -- about these regional organizations' respective understandings on the principle of universal jurisdiction.

This bill (text in English here) would move away from the “pure” universal jurisdiction allowed in Spain's current law, codified at Articles 23 and 24 of Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial. As IntLawGrrl guest/alumna Pamela Merchant has noted, the proposed legislation has many flaws. By way of example, it would introduce:

► Extremely demanding conditions -- even a reverse interpretation of the principle of complementarity that is a cornerstone of the Statute of the International Criminal Court.

► Limitations on the exercise of universal jurisdiction that resemble a doctrine repudiated by Spain's highest court. The limitations resemble the doctrine that Spain's Tribunal Supremo advanced in 2003, in an appeal against the Audiencia Nacional decision in the Guatemala Genocide Case mentioned in Merchant's post. By an 8-7 vote Spain's supreme court maintained in 2003 that only cases with a “legitimating connection,” such as the nationality of the victim or the presence of the offender, could proceed; moreover, the connection was said to have to be present in the principal charges, not just in related or ancillary charges against the defendant. But a higher court in Spain, the Tribunal Constitucional, annulled that ruling two years later. The constitutional court (left) held that the physical presence of the suspect is not required to initiate an investigation based on universal jurisdiction. It also held that territorial courts and an international court have priority over Spanish courts exercising universal jurisdiction; however, universal jurisdiction could be exercised by Spanish courts if a party to the case submitted demonstrated that courts in the territorial state were unwilling or unable to investigate and prosecute effectively the crimes alleged in the complaint. Thus it established that the law did not require the showing of a link between the prosecution of a universal jurisdiction crime and Spain's national interest; indeed, the Tribunal Constitucional considered requirement of such a link to be "contrary to the spirit" of the principle of universal jurisdiction. (photo credit)

It is one thing is to limit abuse and subject the exercise of universal jurisdiction to reasonable limits, such as those envisaged in the Princeton Principles on Universal Jurisdiction (2001) or in some of the provisions of the Krakow Resolution on "universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes," adopted in 2005 by the Institut de Droit International. But it is very different thing to adopt limitations so far-reaching that the defeat the purpose of the principle of universal jurisdiction.

As Lloyd Axworthy, formerly Canada's Foreign Minister and now President and Vice Chancellor of the University of Winnipeg, put it in this 2006 essay:

The application of universal jurisdiction does not entail a diminution of state sovereignty but rather the enforcement of a collective and fundamental system of criminal justice.