One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.
That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)
So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?
Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.
UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:
[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.
I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but ...can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.