Torture by Non-State Actors Not Actionable Under ATS
by Roger Alford ; June 17, 2011
The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy.
The Shafis argue that “the [Palestinian Authority's] conduct violated universally recognized and applicable norms of international customary law prohibiting torture by a public official .” App. Br. 22. That argument cannot prevail. Appellants are advancing a theory that non-state actors can nonetheless be public officials. We need not decide whether that is a possibility, as there is clearly no sufficiently universal norm of international law supporting such a concept to support the creation of an ATS cause of action for torture against a non-state actor, even if that actor falls into the appellants’ proposed expanded category of “public official.”
The Court recognized the some actions by non-state actors could be actionable, such as piracy and infringements of rights of ambassadors. It also seemed to accept Kadic v. Karadzic’s rationale that genocide by a non-state actor could be actionable.
Nonetheless, the Court held that “in 2011 it remains the case that appellants have shown us no such consensus. The complaint does not state a claim cognizable within the jurisdictional grant of the Alien Tort Statute.”
The Safis argued that Common Article 3 of the Geneva Conventions provided the requisite consensus, but the Court rejected that argument, finding that the status of the PLO and the nature of Israeli relations with the Palestinian territory are subjects of continuing debate. In other words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision).
The Court also upheld the district court’s decision to dismiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so.
One of the more interesting parts of the opinion came from Senior Judge Stephen Williams. In his concurring opinion, Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty: (DO – international law violation)
“It seems to me that the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war. Piracy involves a rejection of the Westphalian system itself—pirates remove them-selves from the national building blocks of interna-tional society (and hence are enemies of all mankind). … As to cases against foreigners, violations of the law of nations would be actionable under the ATS 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 by some other feature such that American disregard of the offense might cause serious blame to fall on the United States.”
Curiously, Senior Judge Williams failed to apply his analysis to the question at hand: whether a Palestinian who is serving as an Israeli spy and is tortured by the Palestinian Authority because he is a spy in any way implicates the Westphalian system such that his claim should be actionable.
The slow, quiet demise of the ATS continues. Without further support from the Supreme Court, it appears that the statute is in free fall.
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Distinction b/w Filartiga and Ali Shafis – whether torture by public official or not.
In most ATS cases, violation of “law of nations” was committed by public official, presumably because violation by non-state actor does not implicate international law. (See “Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty”)
The only exceptional case I know is Kadic v. Karadzic where the court explicitly stated that international law could be violated by non-state actor.
This is one of the reasons why plaintiff in ATS suit holds multinational corporations accountable in the modality of aiding and abetting, as opposed to principal.
That said, Ali Shafis is not a surprise. I don’t agree that “the slow, quiet demise of the ATS continues.” It would have made sense if he put, “the ATS faces difficulty expanding its scope of reach.”
Safis’s Common Article 3 (“CA3”) argument seems to be compelling in that the ICTY stated that CA3 is applicable to both international and non-international armed conflicts. (However, the court denied the situation crossed threshold – armed conflict)
Since the ATS suit is against individual, imputability should not an issue. Both state and non-state actor can be held accountable if national of high contracting party to GCs.
(not sure if the ICTY went so far as to declare CA3 amounted to CIL)
