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News & trends
December 2007 | Volume 43, Issue 12

Suit against Blackwater invokes little-used human rights law

Carmel Sileo, Associate Editor

In the wake of the killings of several Iraqi civilians in September by employees of Blackwater USA, the private security contractor hired by the federal government to guard U.S. diplomats in Iraq, the New York City-based Center for Constitutional Rights (CCR) has filed a lawsuit on behalf of the victims’ families. To do so, CCR invoked a near-forgotten maritime law originally designed to combat piracy.

Sometimes called the Pirate Law, the Alien Tort Claims Act (ATCA)—which allows non-U.S. citizens to file federal civil suits in U.S. courts for acts that violate a U.S. treaty or an international law—was passed in 1789. It lay dormant for almost 200 years, until Joel Filártiga, a Paraguayan doctor, used it successfully in 1980 to sue a police officer who had tortured and killed Filártiga’s teenage son and who later moved to Brooklyn. (Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).)

The CCR lawsuit will be a high-profile test case of ATCA’s applicability to human rights claims. The lawsuit alleges that Blackwater and its affiliated companies committed extrajudicial killings and other war crimes and that the company “created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life.”

CCR filed the lawsuit on behalf of one Iraqi citizen who was injured and the families of three others who were killed when Blackwater employees opened fire on civilians in Nisoor Square in Baghdad on September 16. (Atban v. Blackwater USA, No. 1:07-CV-01831 (D.D.C. filed Oct. 11, 2007).)

Susan Burke, a Philadelphia lawyer who is lead counsel in the case, said that Blackwater “claims it is not subject to Iraqi law, or to Iraqi courts. But in the end, that doesn’t matter. It’s illegal to murder anyone, anywhere.”

Burke pointed out that ATCA is not necessary for a civil lawsuit against Blackwater, since it is a U.S. company, but “we are using ATCA because of the particular human rights claims of extrajudicial killing.”

The lawsuit is part of a small but growing trend. “Since Filártiga, there has been a small explosion of litigation under the act,” said Mark Drumbl, a professor of international law at Washington and Lee University School of Law in Lexington, Virginia. That decision is a landmark for human rights advocacy, inspiring scholarly articles, a book, and the hopes of lawyers who see it as a potent tool for curbing war crimes, genocide, and other human rights abuses.

Drumbl, author of Atrocity, Punishment, and International Law, said this new litigation has taken two chief forms. One is cases like Filártiga, which involve claims against individuals.

“These have a lot of symbolic importance, but little practical value,” Drumbl noted, “because often the defendants have no assets. The second wave is what we’re seeing now, of [plaintiffs] suing multinational corporations for aiding and abetting in human rights abuses. And of course, multinational corporations do have assets in the U.S.”

Most of these cases have faced insurmountable obstacles in court, but some key decisions have paved the way for future efforts.

In 2005, energy company Unocal settled a lawsuit accusing it of complicity in forced labor, rape, and murder of Burmese workers committed by security workers the company hired to help build a pipeline in Burma (now Myanmar). (Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2002); Jean Hellwege, U.S. Corporations Can Be Held Liable for Human Rights Abuses Abroad, Ninth Circuit Rules, TRIAL 62 (Dec. 2002) www.justice.org/publications/trial/0212/news3.aspx.)

The same year, the 11th Circuit said a lawsuit on behalf of union activists in Guatemala against Del Monte could proceed. The lawsuit alleges that the company used threats, kidnapping, and torture to stop the plaintiffs from forming a labor union. (Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).)

Last April, the Ninth Circuit issued a similar ruling on behalf of villagers in Papua New Guinea who sued the London-based international mining company Rio Tinto, saying the company had used violent tactics to quell local opposition to a new plant. The court ruled that claims against the company “for war crimes, crimes against humanity, and racial discrimination could properly form the basis for Alien Tort Claims Act jurisdiction.” (Sarei v. Rio Tinto PLC, 487 F.3d 1193 (9th Cir. 2007).)

The Supreme Court has ruled only once on an ATCA claim, in a case brought by a Mexican doctor who alleged that agents of the U.S. Drug Enforcement Agency (DEA) hired other Mexicans to kidnap him and bring him to the United States to stand trial for torturing and killing a DEA agent. The Court dismissed the case but left the door open for other cases to proceed under the act. (Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004).)

Drumbl noted that many countries successfully police themselves regarding human rights abuses; he cited South Africa, whose strong judicial system helped bring about human rights reforms there. But “when the state is weak in its regulation, tort law needs to regulate, especially where there is no functional judicial system,” he said. “Few would put much stock in the Burmese court system, for example, or the Paraguayan or Colombian” systems.

In late October, the U.S. Department of State promised immunity to Blackwater employees for the Nisoor Square shootings. But Burke said the immunity offer will have no effect on the civil case.

“The offer applies only to criminal liability,” she said. “It does not shield Blackwater from any civil action.”

Drumbl said the Blackwater case highlights the important role these lawsuits play in bringing corporate acts out of the darkness and finding a way to hold corporations accountable.

Burke agreed. “This is a company involved in a lot of misconduct,” she said. “And with this lawsuit, we will finally learn just what happened.”

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