Federal Judicial Center

International Litigation Guide

International Human Rights Litigation:

A Guide for Judges

2016
FIRST PRINTING
Federal Judicial Center

International Litigation Guide

International Human Rights Litigation:

A Guide for Judges

David Nersessian, J.D., Ph.D.

Assistant Professor, Accounting and Law Division, 

Babson College

Federal Judicial Center

2016

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop and conduct education programs for the 

judicial branch. While the Center regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the Board of 

the Federal Judicial Center.

v

Contents

Acknowledgments, ix

I. Overview and Scope, 1

II. Federal Law—Civil Remedies for International Human Rights 

Violations, 5

A. Alien Tort Statute, 7

1. ATS Claims Under Treaties, 10

2. ATS Claims Under Customary International Law, 16

3. Territorial Limitations on ATS Claims, 20

B. Rules of Decision in ATS Cases, 39

1. State Action Requirements Under the ATS, 40

2. Aiding and Abetting, and Secondary Liability Under the ATS, 

42

3. Corporate Liability Under the ATS, 45

C. Torture Victim Protection Act, 54

1. Aiding and Abetting Liability, 56

2. Exclusivity of Remedy, 57

3. Exhaustion of Remedies, 57

4. Corporate Liability, 61

5. Relation to Immigration Law, 62

D. Additional Statutory Remedies, 63

1. Trafficking Victims Protection Reauthorization Act, 63

2. Religious Freedom Restoration Act, 64

3. Anti-Terrorism Act, 66

4. FSIA State Sponsors of Terrorism Exception, 68

5. Racketeer Influenced and Corrupt Organizations Act, 69

III. Procedural Issues, 75

A. Service of Process, 75

B. Personal Jurisdiction, 78

C. Venue and Forum Non Conveniens, 83

D. Parties and Standing, 87

E. Discovery, 90
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vi

F. Parallel Criminal and Civil Proceedings, 92

G. Limitations Periods and Tolling, 95

IV. Immunity, 99

A. Foreign Sovereign Immunities Act, 99

B. Individual Foreign Government Officials, 100

C. Individual U.S. Government Officials, 103

V. Judicial Abstention, 105

A.	The Political Question Doctrine, 105

B. The Act of State Doctrine, 110

C. Judicial Comity, 112

D.	The State Secrets Doctrine, 114

VI. Enforcement of Remedies, 119

VII. Active Case Management and Human Rights Cases, 123

VIII. Resources—Table of Appendices, 127

Appendix A: Major International Human Rights Instruments, 129

Human Rights Treaties Ratified by the United States, 129

Human Rights Treaties Signed But Not Yet Ratified by the United 

States, 132

Appendix B: Selected Cases—Actionable Conduct Under the Alien Tort 

Statute (ATS), 135

Cases Finding a Right of Action Under the ATS, 135

Cases Finding No Right of Action Under the ATS, 136

Appendix C: Model Order on Scheduling and Procedure in Human 

Rights Cases (with Joint Statement Form), 139

Appendix D: Federal Statutes (Excerpts), 151

Alien Tort Claims Act, 28 U.S.C. § 1350, 151

Torture Victim Protection Act, 28 U.S.C. § 1350 (note), 151

Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333, 153
Contents

vii

William Wilberforce Trafficking Victims Protection Reauthorization 

Act of 2008, 18 U.S.C. § 1595, 155

Terrorism Exception to the Jurisdictional Immunity of a Foreign 

State, 28 U.S.C. § 1605A, 156

Appendix E: Research References, 159

Online Resources, 159

Restatement (Third) of Foreign Relations Law, 159

American Law Reports, 159

Books and Reports, 160

Table of Authorities, 161

About the Author, 177

ix

Acknowledgments

The author is grateful for thoughtful comments on earlier drafts of this 

guide from Judge David Hamilton of the United States Court of Appeals 

for the Seventh Circuit, Professor Donald Childress of Pepperdine Law 

School, and Professor Chimène Keitner of U.C. Hastings Law School.

This work also benefitted greatly from editorial and substantive comments from Mira Gur-Arie, Director of the International Judicial Relations Office of the Federal Judicial Center, and Elizabeth Andersen, former Executive Director of the American Society of International Law and 

current Director of the American Bar Association’s Rule of Law Initiative. Excellent research assistance was provided over a period of years by 

Boston University School of Law students Lynda Abend, Alysia Fancher, 

Michelle Goldberg, Bethany Hickey, Marek Majeski, and Michael Sloan,

and by American Society of International Law International Law Fellows 

Steven Koh and Emily MacKenzie. 

1

I. Overview and Scope

The purpose of this guide is to help federal judges adjudicate civil cases 

alleging human rights violations under domestic and international law.

In the common vernacular, the phrase “human rights” often is construed 

broadly1 to encompass many forms of civil rights and constitutional 

claims.

2 The focus here is narrower. This guide addresses cases with an 

international dimension brought in federal court pursuant to specific 

U.S. statutes that provide jurisdiction over such claims. These cases include rights-based legal disputes involving foreign plaintiffs or defendants, cases involving violations occurring abroad, and cases relying on 

international human rights law.

3

Human rights litigation can be lengthy and complex. Bowoto v. Chevron Corp., for example, which was one of a small number of such cases to 

progress through trial, took ten years from filing through jury verdict.4

The underlying allegations of killings, torture, and other human rights 

violations against Nigerian protestors by government security agents, 

 

1. See, e.g., Restatement (Third) of the Foreign Relations Law of the United States 

§ 701 cmt. a (1987) (defining human rights as those “freedoms, immunities, and benefits 

which, according to widely accepted contemporary values, every human being should 

enjoy in the society in which he or she lives”) [hereinafter Restatement (Third) of Foreign 

Relations Law]. The Restatement is an authoritative resource for federal courts at all levels 

on issues of international human rights law and other questions of international law. See, 

e.g., Medellín v. Texas, 552 U.S. 491, 506 n.3 (2008) (citing with approval Restatement 

§ 907); Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004) (citing with approval 

Restatement § 702) and id. at 761–62 (Breyer, J., concurring) (citing with approval 

Restatement §§ 402, 404); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 806 (D.C. Cir. 

1984) (citing with approval Restatement §§ 701–722). The American Law Institute’s 

Restatement (Fourth) of Foreign Relations Law of the United States remains unfinished at 

the time of this writing. Therefore, this guide references the third draft adopted by the 

ALI in 1987.

2. See, e.g., Rhode Island Comm’n for Human Rights, http://www.richr.state.ri.us/

(last visited Aug. 10, 2016) (state antidiscrimination agency).

3. Major international human rights treaties to which the United States is a party are 

listed in Appendix A.

4. Bowoto v. Chevron Corp., No. C-99-02506-SI, 2009 WL 1081096 (N.D. Cal. 

2009).
International Human Rights Litigation

2

allegedly with Chevron’s support, ultimately led to more than 2,319 entries in the trial docket, plus an appeal decided in September 2010.

5

Human rights cases often involve the broader challenges inherent in 

any type of transnational litigation, in which documents, physical evidence, and witnesses often are located outside of the jurisdictional reach 

of the court. The parties’ need to access evidence abroad may require that 

the court draw upon various mechanisms for taking testimony and procuring documents overseas. Evidence obtained may be in one or more 

foreign languages, necessitating the use of translation services in pretrial 

and trial proceedings. There also are the challenges inherent in adjudicating any piece of complex litigation, such as large numbers of parties, 

large-scale discovery, class action certification, and heightened media 

interest in the case.

This guide addresses the practicalities of adjudicating human rights 

cases. It provides a general overview of the major legislation in this field, 

as well as procedural matters that arise. It also addresses circuit splits and 

relevant trends in case law. Provisions of the Federal Judicial Center’s 

Manual for Complex Litigation,

6 Elements of Case Management Pocket 

Guide,

7 and Foreign Sovereign Immunities Act Guide8 are incorporated by 

reference.

This guide focuses on civil claims under the following federal statutes, which are involved in the vast majority of human rights cases in 

U.S. courts:

• Alien Tort Claims Act, 28 U.S.C. § 1350 (ATS);

• Torture Victim Protection Act, 28 U.S.C. § 1350 (note) (TVPA);

• Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333 (ATA);

• Trafficking Victims Protection Reauthorization Act, 18 U.S.C. 

§ 1595 (TVPRA);

• State Sponsors of Terrorism Exception to the Foreign Sovereign 

Immunities Act, 28 U.S.C. § 1605(a)(7) (FSIA);

 

5. Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010) (affirming jury verdict).

6. Manual for Complex Litigation, Fourth (2004) [hereinafter MCL].

7. William W Schwarzer & Alan Hirsch, The Elements of Case Management: A 

Pocket Guide for Judges (Federal Judicial Center, 2d ed. 2006).

8. David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges

(Federal Judicial Center 2013).
I. Overview and Scope

3

• Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1

(RFRA); and

• Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 

§§ 1961, 1962 (RICO).

Conduct giving rise to claims under the foregoing statutes also may 

implicate constitutional rights and other federal laws or constitute a general tort under state law (wrongful death, wrongful imprisonment, assault and battery, etc.). Such claims may be raised in tandem with a statutory human rights case, either as an independent federal case9 or 

through the court’s supplemental jurisdiction over state claims.10

Not all claims linked to human rights are discussed here. Cases involving the status of enemy combatants and the use of military tribunals 

to adjudicate violations of the laws of war are not covered. These cases 

raise separate questions on the boundaries of executive and congressional 

constitutional authority, separation of powers, and many other issues.11

Immigration and asylum cases also are not covered,12 except insofar as 

they involve separate human rights violations (e.g., ATS claims for deportations that violate non refouler (non-return) obligations under the 

Convention Against Torture or customary international law).13 Domestic 

 

9. See, e.g., 28 U.S.C. § 1332 (2012) (diversity jurisdiction); Linder v. Calero Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992) (declining to consider claims under international law for killings by Nicaraguan Contras but allowing case to proceed on state law 

tort claims).

10. See, e.g., 28 U.S.C. § 1367 (2012) (supplemental jurisdiction); Xuncax v. Gramajo, 

886 F. Supp. 162, 194–95 (D. Mass. 1995) (allowing supplemental jurisdiction over 

additional claims under domestic law).

11. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (invalidating jurisdictionstripping provisions of the Military Commission Act of 2006 as an unconstitutional suspension of the writ of habeas corpus).

12. The Federal Judicial Center has a separate publication that addresses these topics.

See Michael A. Scaperlanda, Immigration Law: A Primer (Federal Judicial Center 2009).

13. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 art. 3 (“No State Party shall 

expel, return (‘refouler’) or extradite a person to another State where there are substantial 

grounds for believing that he would be in danger of being subjected to torture.”) [hereinafter Convention Against Torture].
International Human Rights Litigation

4

or international criminal proceedings stemming from human rights violations also are not addressed.

14

This guide seeks to provide practical guidance for federal judges who 

hear human rights cases. Where matters of controversy exist, it aims to 

define the contours of those debates without advocating for a particular 

resolution. Cases are cited to illustrate applicable principles and judicial 

positions taken on them.

This guide addresses substantive legal issues of federal human rights 

law as well as the procedural issues that arise in federal human rights 

cases. It commences with an overview of the Alien Tort Statute (ATS)

15

and the ways in which treaties and customary international law apply 

through the ATS’s unique jurisdictional grant. It also discusses important 

territorial limitations on the statute’s application.

After explaining the general requirements of the ATS, the guide provides a detailed analysis of several important issues on which the federal 

circuit courts are divided at the time of this writing (such as the proper 

standard for “aiding and abetting” liability and whether the ATS applies 

to corporate entities). The analysis of substantive law concludes with a 

discussion of other federal human rights statutes, such as the Torture 

Victim Protection Act.

Important procedural issues (e.g., service of process, personal jurisdiction, and standing) are then discussed in the order that judges are 

likely to encounter them. Because many human rights cases either involve governmental parties or otherwise touch upon foreign relations, 

the guide then addresses the role that principles of sovereign immunity 

and judicial abstention play in human rights cases. It then briefly addresses the enforcement of remedies in human rights cases before concluding with a discussion of active case management principles. 

 

14. See, e.g., United States v. Belfast, 611 F.3d 783, 806 (11th Cir. 2010) (federal criminal prosecution and conviction of the son of former Liberian President Charles Taylor

for acts of torture).

15. Alien Tort Claims Act, 28 U.S.C. § 1350 (2012) [hereinafter ATS].
5

II. Federal Law—Civil Remedies for International 

Human Rights Violations

The application and interpretation of international law fall within the 

judicial authority of the federal courts.16 This authority encompasses both 

treaties of the United States17 and rules of customary international law 

(defined as conduct undertaken by nation-states on the international 

plane with opinio juris—the belief that the conduct is required under international law).18

Congress plays a critical role in making international law actionable

within the United States. It does so through legislation incorporating 

rules of international law, providing for jurisdiction over disputes, and 

creating causes of action relating to international rules. Congress also has 

authority to incorporate rules of customary international law19 and 

treaties20 into federal law by reference.

Although the U.S. Constitution prevails over all other sources of 

law,

21 international law and federal statutes rest on equal footing.22 Where 

there is a conflict, courts use the “Charming Betsy” doctrine to interpret 

 

16. See Restatement (Third) of Foreign Relations Law § 112(2) (1987) (“The determination and interpretation of international law present federal questions.”).

17. See U.S. Const. art. VI, cl. 2.

18. See The Paquete Habana, 175 U.S. 677, 700 (1900) (“[W]here there is no treaty 

and no controlling executive or legislative act or judicial decision, resort must be had to 

the customs and usages of [c]ivilized nations . . . .”).

19. See U.S. Const. art. I, § 8, cl. 10 (“The Congress shall have Power . . . To define 

and punish Piracies and Felonies committed on the high Seas, and Offenses against the 

Law of Nations”); United States v. Smith, 18 U.S. 153, 157 (1820) (upholding the constitutionality of Congress’s incorporation of international law by reference and its creation of

a criminal offense punishing “the crime of piracy, as defined by the law of nations”).

20. War crimes under federal law, for example, are defined through an express reference to the Geneva Conventions. See War Crimes Act of 1996, 18 U.S.C. § 2441 (1996) 

(defining war crime “as a grave breach in any of the international conventions signed at 

Geneva 12 August 1949, or any protocol to such convention to which the United States is 

a party”).

21. See Reid v. Covert, 354 U.S. 1, 16–18 (1957).

22. See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 878 (D.C. Cir. 2006)

(“The Constitution establishes that statutes enacted by Congress with the concurrence of 

the President (or over his veto) have no less weight than treaties made by the President 

with the advice and consent of two-thirds of the Senate.”).
International Human Rights Litigation

6

rules of federal law in harmony with international law unless no such 

interpretation is reasonably possible.23 Where irreconcilable conflicts exist, the “last in time” rule controls.24 These rules of construction apply 

equally to treaties25 and rules of customary international law.26 Courts 

also may refer to treaties and other international instruments to resolve

questions about the interpretation of domestic legislation intended to 

implement international obligations.

27

Remedies in federal court for violations of international law require a 

specific grant of federal jurisdiction. Much of this guide is devoted to 

claims brought under the Alien Tort Statute28 and the Torture Victim 

Protection Act,

29 which are the primary avenues of recovery in most human rights cases. Other federal human rights statutes are discussed 

briefly following the more comprehensive analysis of the ATS and the 

TVPA.

 

23. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814–15 (1993). This canon 

of construction is named after the Supreme Court case in which the principle was first 

announced. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) (“[A]n 

act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .”).

24. See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“[If federal legislation and a 

treaty] are inconsistent, the one last in date will control the other: provided, always, the 

stipulation of the treaty on the subject is self-executing.”).

25. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) 

(applying Charming Betsy doctrine); Whitney, 124 U.S. at 194 (applying last in time rule).

26. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20–

22 (1963) (applying Charming Betsy doctrine and last in time rule).

27. See, e.g., Doe I v. Liu Qi, 349 F. Supp. 2d 1258, 1315 (N.D. Cal. 2004) (“Because 

the [TVPA] definition of torture borrows extensively from [the Convention Against 

Torture] and thus the two statutes may be read in pari materia, the courts’ interpretation 

and application of torture under CAT informs the interpretation of torture under the 

TVPA.”).

28. Alien Tort Claims Act, 28 U.S.C. § 1350 (2012).

29. Torture Victim Protection Act of 1991 § 2(a), 28 U.S.C. § 1350 (note) (2012)

[hereinafter TVPA].
II. Federal Law—Civil Remedies for International Human Rights Violations

7

A. Alien Tort Statute

The jurisdictional basis for most civil claims by foreign human rights 

plaintiffs in the United States is the Alien Tort Statute (ATS). The ATS

was enacted by the first federal Congress in 1789 as part of the first Judiciary Act and provides that “[t]he 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.”30

The ATS confers federal subject-matter jurisdiction when (1) an alien files suit; (2) for a tort; (3) committed in violation of the “law of nations” or a treaty of the United States.31 The statute is jurisdictional; by 

itself, the ATS provides no cause of action.32

Substantive claims under the ATS must be grounded in a tortious 

violation of either a treaty of the United States or customary international law.33 (Most ATS cases involve violations of the latter.) The ATS

provides jurisdiction whether such violations are committed by foreign 

government officials34 or private citizens.35 As discussed later, however, 

 

30. ATS, 28 U.S.C. § 1350.

31. See, e.g., Beanal v. Freeport McMoran, 197 F.3d 161, 164–65 (5th Cir. 1997). 

32. Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004).

33. The “law of nations” includes customary international law. See Beanal, 197 F.3d 

at 165. There is some debate among the circuits over whether the “law of nations” refers 

solely to what is now known as customary international law or if instead it is a broader 

concept that includes customary law and other international sources. Compare id. at 165

(“law of nations” now is known as customary international law), with Doe VIII v. Exxon 

Mobil Corp., 654 F.3d 11, 37 (D.C. Cir. 2011) (rejecting view “that the definition of customary international law is synonymous with the law of nations” and holding instead that 

“customary international law is one of the sources for the law of nations”), and Aziz v. 

Alcolac, Inc., 658 F.3d 388, 399 (4th Cir. 2011) (agreeing with the majority decision in 

Doe VIII on this point).

34. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980) (holding that 

“deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the 

parties. Thus, whenever an alleged torturer is found and served with process by an alien 

within our borders, [the ATS] . . . provides federal jurisdiction.”). See also Wiwa v. Royal 

Dutch Petroleum, 226 F.3d 88, 104 (2d Cir. 2000) (noting that the ATS addresses the 

“increasing international concern with human rights issues” and collecting various types 

of ATS cases brought since Filartiga was decided).
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8

only a small category of conduct by private actors qualifies as a violation 

of international law.36

The U.S. Supreme Court interpreted the scope and requirements of 

the ATS in the 2004 decision Sosa v. Alvarez-Machain.

37 Sosa involved 

ATS claims brought by a Mexican national against the United States and 

individual government officials following his arrest and incarceration at 

the behest of U.S. drug enforcement authorities. The Court confirmed 

that the ATS was jurisdictional only, such that it did not establish new 

federal causes of action. It also determined that the first Congress intended the ATS to provide a remedy for certain international violations 

recognized under the common law as it existed in 1789 (acts of piracy, 

injury to ambassadors, and violations of obligations of safe conduct).

38

This original congressional intent remained effective because “Congress 

has not in any relevant way amended [the ATS] or limited civil common 

law power by another statute.”39

Sosa affirmed the understanding of ATS subject-matter jurisdiction 

articulated nearly a quarter century earlier in Filartiga v. Pena-Irala.

40

The Supreme Court also set out standards for federal courts to apply in 

 

35. See, e.g., Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995) (holding that international 

violations such as genocide, crimes against humanity, and war crimes did not require the 

underlying predicate of official state conduct).

36. See infra Part II.B.1.

37. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

38. Id. at 724–25 (“The jurisdictional grant is best read as having been enacted on the 

understanding that the common law would provide a cause of action for the modest 

number of international law violations with a potential for personal liability at the time.”).

39. Id. at 725. There is disagreement in the courts over whether customary international law is part of federal common law after Erie Railroad Co. v. Tompkins, 304 U.S. 64 

(1938). Compare Al-Bihani v. Obama, 619 F.3d 1, 18 (D.C. Cir. 2010) (“Some respected 

scholars have asserted that even though Erie did away with the idea of federal general 

common law, principles of customary international law may still be recognized as federal 

common law by federal courts. But that notion is very difficult to square with Erie . . . .”) 

(internal citations omitted), with In re Estate of Ferdinand E. Marcos Human Rights 

Litig., 978 F.2d 493, 502 (9th Cir. 1992) (“It is . . . well settled that the law of nations is 

part of federal common law.”).

40. Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (“[W]e believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but 

simply as opening the federal courts for adjudication of the rights already recognized by 

international law.”).
II. Federal Law—Civil Remedies for International Human Rights Violations

9

evaluating new substantive ATS claims under international law. In determining whether to recognize a cause of action, courts must look to international law and determine whether the alleged violation “rest[s] on a 

norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century 

paradigms.”41

The Sosa Court denied recovery against the United States because the 

federal government’s waiver of sovereign immunity under the Federal 

Tort Claims Act excluded claims “arising in a foreign country.” Claims 

like Alvarez-Machain’s, which were based on injuries suffered abroad

(abduction and detention), thus were barred even though acts and omissions allegedly causing the foreign injury (DEA agents planning and directing the plaintiff’s arrest) took place within the United States. The 

Court also held that the ATS claims against other individual defendants 

for arbitrary detention failed because the limited detention at issue in the 

plaintiff’s arrest failed to qualify under the liability standard outlined in 

Sosa.

42

Litigation in ATS cases often concentrates on the application of Sosa

and whether plaintiffs can establish that the defendant’s acts constituted 

a tort under the law of nations. Courts make this determination with reference to one of two principal sources. Treaties are the first source—international agreements entered into by the United States.

43 The second 

source is customary international law.

44 Each of these is addressed below, 

followed by a discussion of territorial limitations on ATS claims under

 

41. Sosa, 542 U.S. at 715, 725.

42. Id. at 701–12 (immunity) and 712–38 (customary international law).

43. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United 

States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 

made, under the Authority of the United States, shall be the supreme Law of the Land; 

and the Judges in every State shall be bound thereby, any Thing in the Constitution or 

Laws of any State to the contrary notwithstanding.”).

44. See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of 

our law, and must be ascertained and administered by the courts of justice of appropriate 

jurisdiction as often as questions of right depending upon it are duly presented for their 

determination. For this purpose, where there is no treaty and no controlling executive or 

legislative act or judicial decision, resort must be had to the customs and usages of civilized nations . . . .”).
International Human Rights Litigation

10

the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum 

Company.

45

1. ATS Claims Under Treaties

The ATS allows private claims for violations of a treaty of the United 

States when that treaty is otherwise enforceable in U.S. courts.46 Apart 

from ratification by the Senate, domestic enforceability usually also requires legislation that (1) incorporates the treaty’s provisions into U.S. 

federal law and (2) specifies whether the treaty can be enforced by private 

litigants (as opposed to the federal government alone).47

Without more, Senate advice and consent to a treaty only creates enforceable obligations when the treaty itself is self-executing.48 Whether a 

treaty is self-executing is a question of law for the court.49 In Medellín v. 

Texas, the Supreme Court held that

[w]hat we mean by “self-executing” is that the treaty has automatic 

domestic effect as federal law upon ratification. Conversely, a “non-selfexecuting” treaty does not by itself give rise to domestically enforceable 

federal law. Whether such a treaty has domestic effect depends upon 

implementing legislation passed by Congress.50

The intentions of governmental parties to the treaty are the primary 

consideration that federal courts examine to determine whether a treaty 

is self-executing. Senate declarations upon ratification are a particularly 

strong demonstration of such intent and have been held by many courts 

to be dispositive on this issue.51 If the Senate has made no ratifying declarations, the court should consider not only the terms of the instrument 

 

45. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

46. See ATS, 28 U.S.C. § 1350.

47. See, e.g., Jama v. INS, 22 F. Supp. 2d 353, 365 (D.N.J. 1998).

48. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (International Covenant on Civil and Political Rights (ICCPR) did not provide grounds for the plaintiff’s 

ATS claims because it was ratified by the United States “on the express understanding 

that it was not self-executing”). See also Beazley v. Johnson, 242 F.3d 248, 267–68 (5th 

Cir. 2001) (collecting cases and affirming prior determinations that the ICCPR was not 

self-executing and thus could not support private claims for relief under the ATS).

49. See, e.g., Akhtar v. Reno, 123 F. Supp. 2d 191, 196 (S.D.N.Y. 2000).

50. Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008).

51. See, e.g., Pierre v. Att’y Gen. of U.S., 528 F.3d 180, 185–86 (3d Cir. 2008) (ratification of the Convention Against Torture).
II. Federal Law—Civil Remedies for International Human Rights Violations

11

itself, but also “the history of the treaty, the negotiations, and the practical construction adopted by the parties.”52 The drafters’ intent also can be 

evidenced by the treaty’s text, travaux preparatoires (formal historical 

records) reflecting its drafting and negotiation history, the views of the 

executive branch, and the declarations and understandings of other signatory states upon ratification, as well as their post-ratification conduct.53

These requirements apply even to treaties that are nearly universally 

recognized on a global basis, such as the U.N. Charter54 and the Genocide 

Convention.

55 They are particularly important in the context of multilateral human rights conventions, which often are ratified on the express 

understanding that some or all of their provisions are not self-executing.

(A list of major human rights instruments ratified by the United States is 

provided in Appendix A.) For example, when the U.S. Senate ratified the 

International Covenant on Civil and Political Rights (ICCPR) in 1992, it 

specified “that the provisions of Articles 1 through 27 of the Covenant 

are not self-executing.”56 This declaration has been interpreted as prohibiting ATS claims for ICCPR violations,

57 even though the United 

States is a party to the ICCPR itself.

58

 

52. Choctaw Nation of Indians v. United States, 318 U.S. 423, 431–32 (1943).

53. See, e.g., Brzak v. United Nations, 597 F.3d 107, 111 (2d Cir. 2010).

54. See Medellín v. Texas, 552 U.S. at 505–06 (noting that when treaty provisions 

“are not self-executing they can only be enforced pursuant to legislation to carry them 

into effect,” such that the U.N. Charter is not self-executing) (internal quotations and 

citations omitted). See also Hitai v. INS, 343 F.2d 466, 468 (2d Cir. 1965) (U.N. Charter 

provision mandating “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” was not

self-executing and thus would not invalidate the immigration law of charter signatories, 

including the United States).

55. See Genocide Convention art. V (providing that domestic legislation is required 

to implement the convention’s obligations) and Proxmire Act, 18 U.S.C. § 1092 (1988) 

(“Nothing . . . in this chapter shall be construed as creating any substantive or procedural 

right enforceable by law by any party in any proceeding.”). See also Vaughn v. Hvass, No. 

C4-99-2184, 2000 WL 73067 (unpublished opinion) (Minn. Ct. App. June 6, 2000) (holding that the Proxmire Act provides no private right of action).

56. See United States Reservations, Declarations, and Understandings, International 

Covenant on Civil and Political Rights, Declaration No. 1, 138 Cong. Rec. S4781–01 

(daily ed., Apr. 2, 1992).

57. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (ICCPR was ratified 

by the United States “on the express understanding that it was not self-executing”); 
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The foregoing principles apply even to major instruments that uphold fundamental human rights. The United States is a party, for example, to the Convention Against Torture (CAT),

59 which is the major international treaty that defines torture and creates international obligations to prohibit and punish it. But the CAT itself is not directly 

enforceable in U.S. courts.

60 Judicially enforceable rights under the Torture Convention exist only to the extent that Congress creates them,61

which Congress has done through different laws focused on criminal 

prosecution,62 civil liability,63 and asylum claims.64

It is important to note that even when they address the same subject 

matter, federal legislation and the international obligations implemented 

by that legislation are not necessarily identical. Although the overlap is 

 

Beazley v. Johnson, 242 F.3d 248, 267–68 (5th Cir. 2001) (ICCPR was not self-executing 

and thus did not support private claims under the ATS).

58. See 138 Cong. Rec. 8071 (1992) (Senate ratification of ICCPR); ICCPR art. 50

(“The provisions of the present Covenant shall extend to all parts of federal States without 

any limitations or exceptions.”).

59. See Convention Against Torture arts. 1–4, Dec. 10, 1984, 1465 U.N.T.S. 85.

60. See 136 Cong. Rec. S17486 (daily ed., Oct. 27, 1990). For additional views of the 

U.S. Senate on the Convention, see id. at S17486–92.

61. See Auguste v. Ridge, 395 F.3d 123, 132–33 n.7 (3d Cir. 2005) (“Treaties that are 

not self-executing do not create judicially-enforceable rights unless they are first given 

effect by implementing legislation.”).

62. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 § 506, 18 

U.S.C. § 2340A (2001) (criminalizing torture, attempted torture, and conspiracy to commit torture outside the United States by U.S. nationals and other persons found within 

the United States), and 18 U.S.C. § 2340 (2004) (defining torture as “an act committed by 

a person acting under the color of law specifically intended to inflict severe physical or 

mental pain or suffering (other than pain or suffering incidental to lawful sanctions) 

upon another person within his custody or physical control”).

63. See Torture Victim Protection Act of 1991 § 2(a), 28 U.S.C. § 1350 (2012) (note)

(providing private right of action for torture or extrajudicial killing).

64. See United States Policy with Respect to the Involuntary Return of Persons in 

Danger of Subjection to Torture, Foreign Affairs Reform and Restructuring (FARR) Act 

of 1998, Pub. L. No. 105-277, div. G, tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 

U.S.C. § 1231) (2012) § 2242(a) (non-refouler policy of United States) and § 2242(f)(1)–

(f)(2) (adopting Convention Against Torture, subject to U.S. Senate’s reservations and 

other ratification conditions). See also Implementation of the Convention Against Torture, 8 C.F.R. § 208.18(a) (2008) (defining torture by reference to Convention Against 

Torture and Senate’s ratification conditions for purpose of asylum and withholding from 

removal claims).
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13

substantial, there remain differences between federal law and international law in their definitions of international crimes and related human 

rights matters. Federal law clearly controls in federal courts, such that 

otherwise-applicable international rules are superseded where Congress 

has prescribed different standards for application in the United States.

65

That said, it is important for courts hearing human rights cases to ensure 

that the operative terminology is precise in terms of both the source and 

the substance of the legal rule at issue.

The prohibition on torture provides a good example of the potential 

divergence of federal law from international law.66 Everyone agrees there 

is such a prohibition. U.S. courts recognize that “the prohibition on torture is categorical” and that “torture is illegal under the law of virtually 

every country in the world and under the international law of human 

rights.”67 So do international tribunals.68 “Torture” is prohibited simultaneously as a matter of:

1. federal statutory law, both directly69 and through other laws incorporating the prohibition on torture by reference;70

 

65. See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 678 (7th Cir. 2012) (federal courts must apply domestic rules where controlling federal statutes prescribe different standards from customary international rules); Committee of U.S. Citizens Living in 

Nicaragua v. Reagan, 859 F.2d 929, 938–39 (D.C. Cir. 1988) (holding that in federal 

courts, applicable treaties, statutes, or constitutional provisions overrode inconsistent 

provisions of customary international law).

66. An earlier writing by the author discusses torture and customary international 

law in the context of the ethical obligations of corporate lawyers dealing with human 

rights issues. See David L. Nersessian, Business Lawyers as Worldwide Moral Gatekeepers?

Legal Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics 1135, 

1156–58 (2015). Certain aspects of that discussion are repeated here to facilitate the analysis of ATS claims in federal court.

67. See, e.g., Nuru v. Gonzales, 404 F.3d 1207, 1222 (9th Cir. 2005) (“Unlike customary international law which, ‘like international law defined by treaties and other international agreements, rests on the consent of states,’ jus cogens norms apply universally to 

states and individuals . . . . Therefore, the proscription against torture ‘transcend[s] such 

consent’ of states and individuals.”) (internal quotations and citations omitted). For more

information on torture, see Michael J. Garcia, CRS Report for Congress RL32438: U.N. 

Convention Against Torture (CAT): Overview and Application to Interrogation Techniques, Jan. 25, 2008, available at https://www.fas.org/sgp/crs/intel/RL32438.pdf.

68. See Prosecutor v. Furundzija, Case No. ICTY-95-17/1-T, Judgment, ¶ 153 (Dec. 

10, 1998) (criminal prohibition against torture is a jus cogens obligation).

69. See Torture Victim Protection Act, 28 U.S.C. § 1350 (note) (2012).
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2. international treaties, namely, the Convention Against Torture71

and the Statute of the International Criminal Court (where 

torture is addressed as a method of committing genocide, crimes 

against humanity, and war crimes);72 and

3. customary international law, as applied in civil73 and international 

criminal74 proceedings.

Despite such universal condemnation and prohibition, “[t]he word 

‘torture’ lacks a stable definition.”75 Federal judges hearing torture cases 

must determine the operative definition based upon the legal source or 

sources alleged to provide relief. The required degree of official involvement in, or toleration of, the conduct varies, for example,76 as does the 

minimum threshold for injury.77 U.S. torture law is narrower than the 

 

70. See War Crimes Act of 1996, 18 U.S.C. § 2441 (2012) (defining war crime “as a 

grave breach in any of the international conventions signed at Geneva, 12 August 1949, or 

any protocol to such convention to which the United States is a party”) and Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 3, 32, and 147, 

Aug. 12, 1949, 75 U.N.T.S. 287 (1949) (Geneva Convention IV) (prohibiting torture).

71. Convention Against Torture arts. 1, 2, Dec. 10, 1984, 1465 U.N.T.S. 85.

72. Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998)

art. 6(b) (acts “[c]ausing serious bodily or mental harm to members of the group” as a 

method of genocide), arts. 7(1)(f) and 7(2)(e) (torture as a crime against humanity), and 

arts. 8(1), 8(2)(a)(ii), and 8(2)(c)(i) (torture as a war crime) [hereinafter ICC Statute].

Note that, as of the time of this writing, the United States is not a party to the ICC Statute.

73. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980). See also

Hamdan v. Rumsfeld, 548 U.S. 557, 631–32 (2006) (confirming that Common Article III 

of the Geneva Conventions applied as federal law and requiring unlawful enemy combatants to be tried by a regularly constituted court).

74. See, e.g., Prosecutor v. Furundzija, Int’l Crim. Trib. for the Former Yugo., Case 

No. ICTY-95-17/1-T, Judgment, ¶ 153 (Dec. 10, 1998) (prohibition against torture is 

mandatory under customary international law as a jus cogens obligation).

75. Richard A. Posner, Torture, Terrorism, and Interrogation, in Torture: A Collection 291 (Sanford Levinson ed., 2004).

76. Compare ICC Statute art. 7(2)(e) (defining torture as the “intentional infliction of 

severe pain or suffering, whether physical or mental, upon a person in the custody or 

under the control of the accused; except that torture shall not include pain or suffering 

arising only from, inherent in or incidental to, lawful sanctions”) with Convention 

Against Torture art. 1(1), Dec. 10, 1984, 1465 U.N.T.S. 85 (further requiring “the consent 

or acquiescence of a public official or other person acting in an official capacity”).

77. Compare Convention Against Torture art. 1(1), Dec. 10, 1984, 1465 U.N.T.S. 85 

(“any act by which severe pain or suffering, whether physical or mental, is intentionally 
II. Federal Law—Civil Remedies for International Human Rights Violations

15

prohibition applied in international settings in both actus reus (because 

“severe mental pain or suffering” is defined more restrictively in the statute itself) and mens rea (because the federal law’s “specific intent” requirement limits it to cases in which causing such harm is the offender’s 

actual purpose).78 While these differences do not render federal law ineffective,79 they do mean that federal law has a narrower scope than the 

international prohibition.80

In some instances, federal law and international law do not overlap at 

all. Crimes against humanity, for example, are not addressed legislatively 

 

inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is 

suspected of having committed, or intimidating or coercing him or a third person, or for 

any reason based on discrimination of any kind, when such pain or suffering is inflicted 

by or at the instigation of or with the consent or acquiescence of a public official or other 

person acting in an official capacity”), with Inter-American Convention to Prevent and 

Punish Torture, Dec. 9, 1985, O.A.S. Doc. OEA/Ser. P, A.G./Doc. 2023/85 Rev. 1 art. 2

(“any act intentionally performed whereby physical or mental pain or suffering is inflicted 

on a person for purposes of criminal investigation, as a means of intimidation, as personal 

punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall 

also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not 

cause physical pain or mental anguish”), and with ICC Statute art. 7(2)(e) (“the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in 

the custody or under the control of the accused”) and with 18 U.S.C. § 2340(1) (2012) (U.S. 

torture law defining torture as “an act committed by a person acting under the color of 

law specifically intended to inflict severe physical or mental pain or suffering”) and with

18 U.S.C. § 2340(2) (2012) (limiting “severe mental pain or suffering” to four categories 

of specified conduct) and with United States Manual for Military Commissions, 2010 

Edition, Apr. 27, 2010, part IV(11) (definition of torture identical to that in the federal 

criminal statute) (same) (emphasis added to all).

78. See United States v. Bailey, 444 U.S. 394, 405 (1980) (“purpose” corresponds to 

specific intent, whereas “knowledge” corresponds to general intent).

79. See United States v. Belfast, 611 F.3d 783, 806 (11th Cir. 2010) (holding that 

“slight variances between a treaty and its congressional implementing legislation do not 

make the enactment unconstitutional; . . . . the Torture Act is a valid exercise of congressional power . . . because the Torture Act tracks the provisions of the CAT in all material 

respects”).

80. As discussed later, in the civil context, most torture cases are addressed through 

the TVPA rather than the ATS. See infra Part II.C.
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as federal offenses in and of themselves.

81 Yet U.S. recognition of such 

conduct as criminal dates back to the Nuremberg Trials (where crimes 

against humanity were prosecuted by American officials, among others).82 And although war crimes are addressed in federal law, the federal 

codification omits a number of specific types of war crimes that violate 

customary international law.83

These differences become more relevant when claims are asserted 

under the second basis for ATS liability—customary international law.

As discussed below, even if a treaty is not directly enforceable within the 

United States, it may be relevant to an ATS case as evidence of the content of customary international law (when the treaty codifies independently recognized customary international rules).

2. ATS Claims Under Customary International Law

As noted previously, rules of customary international law also must be 

considered by federal courts that are assessing the viability of ATS

claims.84 The Restatement (Third) of Foreign Relations Law, whose definition has been widely adopted in the federal system,85 defines customary international law as the “general and consistent practice of states followed by them from a sense of legal obligation.”86

 

81. See, e.g., Crimes Against Humanity Act of 2009, S. 1346, 111th Cong., 1st Sess. 

(June 24, 2009) (legislative proposal that would amend the federal criminal code and 

make certain crimes against humanity, as defined in the statute, federal crimes).

82. See Charter of the International Military Tribunal art. 6(c), Aug. 8, 1945, 82 

U.N.T.S. 279, 1 Trial of the Major War Criminals Before the International Military Tribunal, November 14, 1945–October 1, 1946 10–16 (William S. Hein & Co. ed., 1995).

83. See, e.g., David Scheffer, Closing the Impunity Gap in U.S. Law, 8 Nw. U. J. Int’l 

Rts. 30, 47 (2009) (“Despite what may appear to be an impressive compilation of war 

crimes that can be prosecuted under the War Crimes Act of 1996 . . . there remain a significant number of war crimes under customary international law . . . that have not been 

codified in U.S. law.”).

84. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 712–38 (2004) (finding that ATS 

claims based on arbitrary detention must fail because the nature and extent of the petitioner’s underlying arrest violated no clear norm of customary international law).

85. See, e.g., United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1251–52 (11th Cir. 

2012) (collecting numerous cases adopting the Restatement’s definition of customary 

international law).

86. See Restatement (Third) of Foreign Relations Law § 102(2) (1987). See also Statute of the International Court of Justice art. 38(1)(b), 59 Stat. 1055 (1945) (sources of 
II. Federal Law—Civil Remedies for International Human Rights Violations

17

When identifying relevant rules of customary international law, 

courts often turn to materials outside the usual realm of federal statutes, 

case law, and legislative and administrative materials. The Supreme 

Court has recognized that

where there is no treaty and no controlling executive or legislative act 

or judicial decision, resort must be had to the customs and usages of 

civilized nations, and, as evidence of these, to the works of jurists and 

commentators . . . not for the speculations of their authors concerning 

what the law ought to be, but for trustworthy evidence of what the law 

really is.87

The inquiry is far-reaching. “Customary international law does not 

stem from any single, definitive, readily identifiable source but is discerned from myriad decisions made in numerous and varied international and domestic arenas.”88 Evidence of the rules of international law 

can be found in the decisions of international courts and tribunals, domestic decisions addressing international law, scholarly writings, and 

diplomatically significant state pronouncements reflecting a particular 

rule of law.89

As the Second Circuit has noted, “in determining what offenses violate customary international law, courts must proceed with extraordinary 

care and restraint.”90 Multiple sources of law might apply to different aspects of an ATS claim. Each potential source should be identified clearly,

because the court may need to address these issues in considering the 

sufficiency of a complaint under Ashcroft v. Iqbal.

91 Under this standard, 

plaintiffs must plead plausible facts to enable the court to identify the 

 

international law include “international custom, as evidence of a general practice accepted as law”) [hereinafter ICJ Statute].

87. The Paquete Habana, 175 U.S. 677, 700 (1900).

88. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 685 (7th Cir. 2012) (citing Flores 

v. S. Peru Copper Corp., 414 F.3d 233, 247–48 (2d Cir. 2003)).

89. Restatement (Third) of Foreign Relations Law § 103 (1987).

90. Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003) (denying claim 

that international pollution infringed upon a general right to good physical and mental 

health under the Universal Declaration of Human Rights and the ICCPR because the 

principles in question were “virtuous goals” that were not clear enough to constitute enforceable norms of customary international law).

91. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (holding that plaintiffs “must plead 

sufficient factual matter” to establish their claims in initial pleadings).
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source or sources of legal rights claimed and the manner in which those

rights allegedly were violated.

92 Although an Iqbal challenge may lead to 

dismissal,93 the court also should consider whether to grant the plaintiff 

leave to amend.94

The 1995 case Kadic v. Karadžić,

95 while predating Sosa, nevertheless 

provides a useful illustration of the complex relationship between U.S. 

federal law and international human rights law. Genocide is proscribed 

as a federal crime under the Proxmire Act, which was the ratifying legislation that Congress passed to implement the 1948 Genocide Convention.96 At the time, Congress concluded that the Genocide Convention 

conferred no private right of action and limited the reach of the Proxmire 

Act to offenses committed on U.S. territory or perpetrated by U.S. nationals.

97 It was not until 2007 that federal jurisdiction was expanded to 

include acts of genocide committed abroad.98

The ATS claims approved in 1995 by the Second Circuit in Kadic v. 

Karadžić thus were based on genocide as a violation of customary inter-

 

92. See, e.g., Kaplan v. al Jazeera, No. 10-CV-5298, 2011 WL 2314783 (S.D.N.Y. 

2011) (dismissing ATS and ATA claims against television network for aiding and abetting 

terrorism based on factual insufficiency where “[p]laintiffs . . . offered no facts suggesting 

that Defendant even knew that it was providing anything to Hezbollah. This is a far cry 

from donating money to a terrorist organization.”).

93. See, e.g., Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1265 (11th Cir. 2009) (applying Iqbal to human rights case and holding that the “[f]ailure to plead any of the elements of a TVPA claim results in a failure to state a claim upon which relief can be 

granted”), overruled on other grounds by Mohamad v. Palestinian Auth., 132 S. Ct. 1702 

(2012) (holding that only natural persons could be held liable under the TVPA).

94. See Iqbal, 556 U.S. at 686–87 (remanding for lower court to determine whether 

plaintiff should be given leave to amend).

95. Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995).

96. See Proxmire Act, 18 U.S.C. § 1091 (2012).

97. See id. § 1091(d) (limiting jurisdiction) and § 1092 (no private right of action).

See also Vaughn v. Hvass, No. C4-99-2184, 2000 WL 73067 (unpublished opinion)

(Minn. Ct. App. June 6, 2000) (holding that the Proxmire Act provides no private right of 

action).

98. The Genocide Accountability Act of 2007 expanded the categories of perpetrators to include aliens and stateless persons residing in the United States, as well as other 

offenders who are brought into or otherwise found in the United States, even if their genocidal conduct took place abroad. See Genocide Accountability Act of 2007, Pub. L. No. 

110-151 § 2 (Dec. 21, 2007).
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19

national law.

99 The court’s decision was based neither on federal statutory 

law on genocide (because the Proxmire Act provided no private right of 

action100) nor on the ATS claims being grounded in a federal treaty (because the Genocide Convention was not self-executing).

101 Rather, the 

court focused on the separate international prohibition on genocide that 

exists independently under customary international law. The Second 

Circuit allowed the plaintiff’s genocide claims because the ATS specifically provides relief for violations of the “law of nations.” Put another 

way, the ATS “does not by its own terms regulate conduct; rather, it applies universal norms that forbid conduct regardless of territorial demarcations or sovereign prerogatives.”102

One other consideration raised in Sosa bears mentioning. Judges

must bear in mind that “the determination whether a norm is sufficiently 

definite to support a cause of action should (and, indeed, inevitably 

must) involve an element of judgment about the practical consequences 

of making that cause available to litigants in the federal courts.”103

In sum, federal courts considering ATS claims under customary international law must determine whether the evidence offered proves the 

existence of a legal norm that is sufficiently universal, obligatory, and 

specific104 to constitute a compensable violation of international law under the ATS. To assist the court in making this assessment, Appendix B

sets forth a selection of federal decisions on whether certain types of human rights violations did or did not support a cause of action under the 

ATS. Courts may reach different conclusions about the viability of cer-

 

99. Kadic, 70 F.3d at 241–42.

100. See Proxmire Act, 18 U.S.C. § 1092 (“Nothing . . . in this chapter [shall] be construed as creating any substantive or procedural right enforceable by law by any party in 

any proceeding.”).

101. Convention on the Prevention and Punishment of the Crime of Genocide art. 

V, 78 U.N.T.S. 277 (1948) (addressing domestic legislation to implement the Convention’s obligations).

102. In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 246–47 (S.D.N.Y. 2009).

Note that the district court’s reference to legal norms that transcend international boundaries is conceptually distinct from territorial limitations on ATS claims under the Supreme Court’s decision in Kiobel. See infra Part II.A.3.

103. Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 (2004).

104. Id. at 715, 725.
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tain types of ATS claims, however—just as they may differ on any complex question of federal law.105

The mere pleading of international violations that suffice under Sosa

does not automatically mean that an ATS claim can proceed, however.

As discussed below, the Supreme Court has determined that such claims 

also must “touch and concern the territory of the United States . . . with 

sufficient force to displace the presumption against extraterritorial application [of the ATS].”106

3. Territorial Limitations on ATS Claims

In 2013, the U.S. Supreme Court announced a significant limitation on 

the application of the ATS to cases in which the underlying claims arise 

overseas. Kiobel v. Royal Dutch Petroleum Co.107 involved ATS claims by 

Nigerian plaintiffs who alleged that foreign oil companies orchestrated 

torture, extrajudicial killings, and crimes against humanity in Nigeria. In 

2010, the Second Circuit dismissed the case on the grounds that international law did not provide for recovery in tort against corporations.108

The Supreme Court agreed to hear the case during its October 2011 term 

in order to address the liability of artificial entities under the ATS.

109

The extraterritorial application of the ATS itself was not among the 

questions initially presented to the Court in Kiobel. (This issue had been 

noted but not resolved by the Second Circuit.

110) It also had been addressed by the Ninth Circuit in Sarei v. Rio Tinto (which was pending 

before the Supreme Court at the time Kiobel was heard).

111 In response to 

 

105. Compare, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 

1247 (11th Cir. 2005) (finding “no basis in law to recognize Plaintiffs’ claim for cruel, 

inhuman, degrading treatment or punishment”), with In re S. African Apartheid Litig., 

617 F. Supp. 2d 228, 253–54 (S.D.N.Y. 2009) (declining to follow Aldana and recognizing 

ATS claim for cruel, inhuman, or degrading treatment or punishment).

106. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).

107. Id.

108. Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), reh’g denied, 642 

F.3d 379 (2d Cir. 2011) (en banc). The liability of artificial entities under the ATS is 

discussed in more detail below. See infra Part II.B.3.

109. Kiobel v. Royal Dutch Petroleum, 132 S. Ct. 472 (2011) (mem.).

110. The Second Circuit had noted that extraterritoriality was “lurking” in the background. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 117 n.10 (2d Cir. 2010).

111. Sarei v. Rio Tinto, PLC, 671 F.3d 736, 744–47 (9th Cir. 2011) (holding that 

Morrison v. National Australia Bank Ltd. did not preclude ATS claims for conduct occur-
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several justices raising the issue during oral arguments, the Court carried 

Kiobel over to the following term, directing the parties to provide supplemental briefing on “[w]hether and under what circumstances the Alien 

Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a 

sovereign other than the United States.”112

The primary question framed for decision in Kiobel thus became 

whether the ATS applied outside the territory of the United States.

a. The Kiobel Majority Opinion

All nine Justices in Kiobel agreed that the ATS claims in that case should 

be dismissed, although they disagreed on the underlying rationales for 

that decision. The Court had previously considered the extraterritorial 

application of a federal statute in Morrison v. National Australia Bank 

Ltd.

113 In that case, the Court determined that section 10(b) of the 1934 

Securities Exchange Act provided no right of action to foreign plaintiffs 

suing foreign defendants for conduct that did not involve the sale of securities on U.S. territory or trading on U.S. exchanges.

The Kiobel majority opinion, authored by Chief Justice Roberts and 

joined by Justices Scalia, Kennedy, Thomas, and Alito, followed Morrison

even though the ATS (in contrast to the Securities Exchange Act) was a 

jurisdictional statute.114 The majority cited Morrison’s broad presumption against the extraterritorial application of federal laws as a canon of 

statutory interpretation. As a general matter, federal courts must dismiss 

statutory claims arising from overseas conduct absent clear evidence that 

Congress intended such foreign claims to be heard.

115

 

ring outside the United States), cert. granted, judgment vacated by 133 S. Ct. 1995, Apr. 

22, 2013. The Supreme Court did not act on the cert. petition in Sarei until after it decided Kiobel. See Rio Tinto, PLC v. Sarei, 133 S. Ct. 1995 (2013) (granting cert., vacating 

judgment, and remanding to Ninth Circuit for reconsideration in light of Kiobel). On 

remand, the Ninth Circuit applied the Kiobel standard and dismissed the case with prejudice. See Sarei v. Rio Tinto, PLC, 722 F.3d 1109 (9th Cir. 2013) (en banc).

112. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663 (2013).

113. Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).

114. See Kiobel, 133 S. Ct. at 1664 (noting that the ATS was “‘strictly jurisdictional’”)

(citing Sosa v. Alvarez–Machain, 542 U.S. 692, 713 (2004)).

115. See Morrison, 561 U.S. at 255 (holding that “[i]t is a longstanding principle of 

American law that legislation of Congress, unless a contrary intent appears, is meant to 
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The Supreme Court’s decisions in Morrison and Kiobel note the importance of federal judges’ avoiding the “diplomatic strife”116 that can 

arise when they adjudicate the legal consequences of conduct that occurs 

in the territory of foreign sovereigns:

[T]he danger of unwarranted judicial interference in the conduct of 

foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do . . . . 

These concerns, which are implicated in any case arising under the 

ATS, are all the more pressing when the question is whether a cause of 

action under the ATS reaches conduct within the territory of another 

sovereign.”117

In Kiobel, the Chief Justice noted that the Court had voiced similar 

concerns nine years earlier in Sosa.

118 He also pointed out that such foreign policy considerations applied in reverse, noting that the absence of 

territorial limits “would imply that other nations, also applying the law of 

nations, could hale our citizens into their courts for alleged violations of 

the law of nations occurring in the United States, or anywhere else in the 

world.”119

After examining the text and historical background of the ATS,120

Chief Justice Roberts determined that “the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the 

statute rebuts that presumption.”121 The burden of rebutting the presumption against extraterritorial application fell to the petitioners, who 

were Nigerian nationals asserting claims against foreign defendants for 

 

apply only within the territorial jurisdiction of the United States . . . . Thus, unless there is 

the affirmative intention of the Congress clearly expressed to give a statute extraterritorial 

effect, we must presume it is primarily concerned with domestic conditions.”) (internal 

quotations and citations omitted).

116. See Kiobel, 133 S. Ct. at 1669–70.

117. Id. at 1664–65.

118. Id. at 1664 (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (noting 

that “the potential [foreign policy] implications . . . of recognizing . . . . causes [under the 

ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs”)).

119. Id. at 1669.

120. See Kiobel, 133 S. Ct. at 1665–68.

121. Id. at 1669.
II. Federal Law—Civil Remedies for International Human Rights Violations

23

violations of international law that occurred in Nigeria.122 The Court 

found that nothing in the facts of the case rebutted the presumption and 

therefore held that the ATS claims were barred.123

The Chief Justice left an opening for future claims to proceed but 

noted that subsequent ATS claims that “touch and concern the territory 

of the United States . . . must do so with sufficient force to displace the 

presumption against extraterritorial application.”124 While the specific 

parameters were left for determination in subsequent cases, the Chief 

Justice was careful to note that corporate presence alone would not rebut 

the presumption. “Corporations are often present in many countries, and 

it would reach too far to say that mere corporate presence suffices.”125

Thus, even though the corporate defendants in Kiobel were foreign entities affiliated with U.S. corporations, that limited presence alone was insufficient to confer ATS jurisdiction over the petitioners’ claims.126

b. The Kiobel Concurring Opinions

In addition to its majority opinion, Kiobel included three concurring 

opinions, one of which was authored by Justice Kennedy. His concurring 

opinion included a reference to the Torture Victim Protection Act, which 

was not at issue in Kiobel. He stated that Kiobel’s presumption against 

extraterritorial application might be rebutted (or at least would “require 

some further elaboration and explanation”) in cases involving “serious 

violations of international law principles protecting persons” that were 

“covered neither by the TVPA nor by the reasoning and holding of 

[Kiobel].”127

Justice Alito’s concurring opinion, which was joined by Justice 

Thomas, articulated his view that “a putative ATS cause of action will fall 

within the scope of the presumption against extraterritoriality—and will 

 

122. Id. at 1662 (foreign defendant corporations), 1663 (foreign claimants), and 

1662–63 (claims arising out of foreign conduct).

123. Id. at 1669.

124. Id.

125. Id.

126. Id. See also Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 266 (2010) (noting that “the presumption against extraterritorial application would be a craven watchdog 

indeed if it retreated to its kennel whenever some domestic activity is involved in the 

case”).

127. Kiobel, 133 S. Ct. at 1669 (Kennedy, J., concurring).
International Human Rights Litigation

24

therefore be barred—unless the domestic conduct is sufficient to violate 

an international law norm that satisfies Sosa’s requirements of definiteness and acceptance.”128

Justice Breyer’s concurring opinion, which was joined by Justices 

Ginsburg, Kagan, and Sotomayor, offered a fundamentally different approach to ATS jurisdiction. Justice Breyer opined that the ATS provided

subject-matter jurisdiction whenever (1) the tortious conduct “occurs on 

American soil”; (2) “the defendant is an American national”; or (3) “the 

defendant’s conduct substantially and adversely affects an important 

American national interest . . . includ[ing] a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as 

criminal liability) for a torturer or other common enemy of mankind.”129

Because none of these three considerations was present under the 

facts of Kiobel, Justice Breyer agreed that the case should be dismissed.130

Justice Breyer also agreed that mere corporate presence by a non-U.S. 

national defendant by itself was insufficient to rebut the presumption 

against extraterritorial application of the ATS.

131 Neither Justice Kennedy 

nor Justice Alito voiced any disagreement with this proposition in their 

concurring opinions.132

c. The Future Implications of Kiobel

The Supreme Court left room for the future interpretation and application of the Kiobel standard. Two concurring opinions pointed out that

the majority opinion was narrow and left important questions unresolved.

133 And as noted above, the majority opinion provided that ATS

 

128. Id. at 1670 (Alito, J., concurring) (emphasis added).

129. Id. at 1670 (Breyer, J., concurring). In contrast, the majority opinion expressly 

disclaimed the notion that the ATS “was passed to make the United States a uniquely 

hospitable forum for the enforcement of international norms” and suggested that it was 

highly unlikely that the early Congress of a “fledgling republic” would seek to directly 

involve the nation in the affairs of foreign states by creating a cause of action for conduct 

in a foreign sovereign’s territory. Id. at 1668.

130. Id. at 1669 (Breyer, J., concurring).

131. Id. at 1677 (Breyer, J., concurring).

132. Id. at 1669–70 (Kennedy, J., concurring ) and id. at 1670 (Alito, J., concurring).

133. See id. at 1669 (Kennedy, J., concurring) (recognizing that “a number of significant questions regarding the reach and interpretation of the [ATS remained]”) and id. at 
II. Federal Law—Civil Remedies for International Human Rights Violations

25

claims that “touch and concern the territory of the United States . . . with 

sufficient force to displace the presumption against extraterritorial application” might be allowed to proceed.

Post-Kiobel questions left for resolution by the lower federal courts

include the following:

• the criteria used to determine whether overseas conduct “touches 

and concerns” the United States;

• when conduct does “touch and concern” the United States, the 

standard for ascertaining whether it does so with “sufficient force”

to rebut the presumption against extraterritoriality;

• whether defendants who are U.S. nationals can be held liable for 

violations of international law committed abroad;

• whether the ATS should be limited solely to violations that occur 

on U.S. territory; and

• the nature and extent of domestic conduct required to make a foreign corporation more than “merely present” in the United States.

There is great room for debate over these (and other) questions that 

cannot be addressed comprehensively in this writing.

134 Case law is evolving rapidly, often presenting issues of first impression to the district and 

circuit courts hearing ATS claims. A selection of post-Kiobel developments in federal case law follows to provide guidance on how at least 

some federal courts have implemented the Kiobel standard.

d. Developments and Emerging Trends

One immediate implication of Kiobel is that fewer ATS cases are likely to 

proceed to resolution on the merits. As one district court noted, “[w]hile 

the full extent of the impact that the Kiobel decision will have on future 

ATS claims remains unclear, the majority in Kiobel (and for that matter 

the court unanimously overall) clearly sought to restrain, to a significant 

degree, the ability of individuals to bring ATS claims for tortious conduct 

 

1669–70 (Alito, J., concurring) (noting the majority opinion’s “narrow approach,” which 

“obviously leaves much unanswered”).

134. The American Journal of International Law devoted a full issue—containing 

seventeen separate articles—to the meaning and implications of Kiobel. See 107 Am. J. 

Int’l Law 601 (2013).
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26

occurring entirely outside of the United States.”135 This undoubtedly will 

be the practical effect in many cases, at least for foreign claims that do 

not forcefully “touch and concern” the territory of the United States.136

Kiobel has been interpreted as setting “a very high bar for plaintiffs 

asserting jurisdiction under the ATS for claims arising out of conduct 

occurring entirely abroad.”137 This limitation is entirely independent of 

the substantive factual merits of the claim and its viability under Sosa.

The district court that heard Mohammedi v. Islamic Republic of Iran,

while noting that the underlying claims (torture and extrajudicial killing 

of an Iranian citizen by Iranian government officials) were “undoubtedly 

egregious,” nevertheless found that they failed to clear the jurisdictional 

threshold established in Kiobel.

138 Because the ATS case turned on “conduct that occurred entirely within the sovereign territory of Iran,” the 

claims were barred.139 There was a similar result in Sarei v. Rio Tinto,

140 in 

which the Ninth Circuit determined that Kiobel required dismissal of the 

thirteen-year-old case with prejudice.141

Kiobel and Sarei v. Rio Tinto both involved a particular type of ATS 

dispute that has fared poorly post-Kiobel—so-called “foreign cubed”

cases, in which foreign defendants are sued by foreign plaintiffs for alleged violations on foreign soil. Since Kiobel was decided, federal courts 

have dismissed a variety of “foreign cubed” cases, including ATS claims 

involving

 

135. Ahmed-Al-Khalifa v. Salvation Army, No. 3:13-CV-289-WS, 2013 WL 2432947,

at *2 n.1 (N.D. Fla. June 3, 2013).

136. The Supreme Court more recently limited federal claims in other contexts in 

which the domestic conduct in the case is limited. See OBB Personenverkehr AG v. Sachs, 

136 S. Ct. 390, 395–97 (2015) (online purchase of a Eurail pass from a Massachusettsbased travel agency was insufficient to constitute commercial activity within the United 

States for purposes of the commercial activity exception to the FSIA; all negligent conduct 

allegedly giving rise to the plaintiff’s claims occurred abroad, such that the “gravamen” of 

the lawsuit involved conduct occurring outside of the United States). 

137. See Mohammedi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 71 (D.D.C. 

2013).

138. Id.

139. Id.

140. Sarei v. Rio Tinto, 671 F.3d 736, 744–47 (9th Cir. 2011), cert. granted and judgment vacated, Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013).

141. Sarei v. Rio Tinto, PLC, 722 F.3d 1109, 1110 (2013) (en banc) (dismissing case 

on remand from the Supreme Court).
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27

• the false arrest and torture of a Bangladeshi plaintiff procured by a 

Bangladeshi corporation in Bangladesh (vacating a jury award 

previously rendered in the case);

142

• a Chinese media executive who developed propaganda and media 

campaigns that led to the torture and abuse of Chinese Falun 

Gong practitioners in Chinese “re-education” camps);

143

• political persecution and the arbitrary arrest, detention, and prosecution of a Ukrainian politician by Ukrainian political opponents 

in Ukraine;

144

• a Nigerian plaintiff denied humanitarian relief by a Nigerian aid 

organization in Nigeria;

145

• the political murder of a Honduran politician in Honduras, allegedly at the hands of Honduran military officials;

146

• claims by Israeli fathers against high-ranking Israeli officials and 

Israeli nonprofits arising out of alleged discrimination against fathers in Israel’s family law judicial system;

147 and

• ATS claims of torture, genocide, unlawful killings, and other serious human rights violations brought by members of the Chinese 

Falun Gong movement now residing in the United States in which

the “[p]laintiffs’ alleged detention, torture, and abuse took place 

entirely abroad” at the hands of the Chinese government.148

 

142. Chowdhury v. WorldTel Bangl. Holding, Ltd., 746 F.3d 42, 49 (2d Cir. 2014)

(vacating a jury award on appeal and dismissing ATS claims where “all the relevant conduct set forth in plaintiff’s complaint occurred in Bangladesh”).

143. Chen Gang v. Zhao Zhizhen, No. 3:04–CV–1146, 2013 WL 5313411 (D. Conn. 

Sept. 20, 2013).

144. Tymoshenko v. Firtash, 57 F. Supp. 3d 311 (S.D.N.Y. 2014).

145. Ahmed-Al-Khalifa v. Salvation Army, No. 3:13-CV-289-WS, 2013 WL 2432947 

(N.D. Fla. June 3, 2013). Given the nature of the allegations in question, this case most 

likely would have failed on Sosa grounds as well, although the court did not reach the 

merits of the ATS claim. Id.

146. Murillo v. Bain, No. H–11–2373, 2013 WL 1718915, at *3 (S.D. Tex. Apr. 19, 

2013) (noting that “American laws like the Alien Tort Statute . . . are presumed not to 

apply beyond the borders of the United States”).

147. Ben–Haim v. Neeman, 543 F. App’x 152, 155 (3d Cir. 2013) (dismissing because 

“the conduct that formed the basis of the ATS claims took place in Israel, and thus subject 

matter jurisdiction . . . is lacking in the federal courts”).

148. Hua Chen v. Honghui Shi, No. 09-8920-RJS, 2013 WL 3963735, at *7 (S.D.N.Y. 

Aug. 1, 2013).
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28

Many other “foreign cubed” cases have yielded similar results. Cases 

in which less than all three factors are “foreign” have been more successful, however.

Multiple factors have been considered by courts analyzing whether 

the presumption against extraterritorial application of the ATS has been 

rebutted. In Al Shimari v. CACI Premier Technology, Inc.,

149 a unanimous 

Fourth Circuit panel reversed the dismissal of claims against a U.S. civilian military contractor arising out of alleged torture and war crimes 

committed at the Abu Ghraib prison in Iraq. The alleged violations took 

place on foreign territory that was under the actual control of the United 

States. Holding that the application of Kiobel presented a question of 

fact,150 the court concluded that the plaintiffs’ ATS claims sufficiently 

“touched and concerned” the territory of the United States to rebut the 

presumption against extraterritorial application.

Factors considered by the Fourth Circuit included the defendant’s 

status as a U.S. corporation, the U.S. citizenship of the corporate employees who allegedly committed torture, the involvement of the U.S. government in retaining the defendants’ services and in allegedly encouraging the conduct and concealing it after the fact, and the intent of 

Congress to prohibit torture and allow victims a remedy.

151 The court 

also addressed the “‘foreign policy concerns’ arising from potential ‘unintended clashes between our laws and those of other nations which 

could result in international discord, and from ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’”152 It held 

that the case presented no foreign policy problems because the defendants were U.S. citizens.153

The precise weight (if any) to be afforded an ATS defendant’s citizenship is a matter of dispute in the federal courts. Some courts have sug-

 

149. Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014).

150. Id. at 527 (4th Cir. 2014) (“The ‘touch and concern’ language set forth in the 

majority opinion contemplates that courts will apply a fact-based analysis to determine 

whether particular ATS claims displace the presumption against extraterritorial application.”).

151. Id. at 530–31.

152. Id. at 526 (citing Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 

(2013)).

153. Id. at 520, 526. The court remanded so that the district court could ascertain

whether the case presented a nonjusticiable political question.
II. Federal Law—Civil Remedies for International Human Rights Violations

29

gested that U.S. citizenship (or even residence) is sufficient in and of itself to rebut the presumption.

154 Others have held that residence is 

irrelevant.155 In Mastafa v. Chevron Corp.,

156 the Second Circuit considered the citizenship of corporate ATS defendants and made the following 

holding:

We disagree with the contention that a defendant’s U.S. citizenship has 

any relevance to the jurisdictional analysis. The Supreme Court made 

clear in Kiobel that the full “focus” of the ATS was on conduct . . . . 

Whether a complaint passes jurisdictional muster accordingly depends 

upon alleged conduct by anyone—U.S. citizen or not—that took place 

in the United States and aided and abetted a violation of the law of 

nations. A complaint cannot be “saved” for jurisdictional purposes 

simply because a U.S. citizen happened to commit the alleged violation; 

similarly, our jurisdiction over actions taken within the United States is 

 

154. See, e.g., Ahmed v. Magan, 2013 WL 4479077 (S.D. Ohio Aug. 20, 2013) (unpublished opinion) (following a grant of summary judgment on liability and a trial on 

damages, holding that “as a permanent resident of the United States, the presumption 

against extraterritoriality has been overcome”). See also Mujica v. AirScan, Inc., 771 F.3d 

580, 615–16 (9th Cir. 2014) (Zilly, J., concurring in part and dissenting in part) (arguing 

that treating “U.S. citizenship as just ‘one factor’ among other unspecified factors simply 

begs the question of what act is sufficient or how many acts are enough to establish jurisdiction. I would instead hold that the ATS confers jurisdiction when an ATS claim is 

brought against a domestic corporation or other U.S. national, without any allegation of 

underlying conduct within the United States.”) (internal citations omitted).

155. See, e.g., Warfaa v. Ali, 33 F. Supp. 3d 653, 659 (E.D. Va. 2014) (dismissing case 

against former Somali military officer for alleged torture perpetrated in Somalia, holding 

that “[b]ecause the extraterritoriality analysis set forth in Kiobel appears to turn on the 

location of the relevant conduct, not the present location of the [lawful resident alien] 

defendant, a straightforward application to the instant action leads the Court to conclude 

that plaintiff’s ATS claims are ‘barred’ and must be dismissed.”), aff’d, Warfaa v. Ali, 811 

F.3d 653, 661 (4th Cir. 2016) (“Mere happenstance of residency, lacking any connection 

to the relevant conduct, is not a cognizable consideration in the ATS context.”); Mamani 

v. Berzain, 21 F. Supp. 3d 1353 (S.D. Fla. 2014) (because claims by Bolivian citizens 

against former government officials were based on conduct in Bolivia, ATS case arising 

out of massacres during periods of civil unrest must be dismissed, notwithstanding defendants’ current residence in the United States and Bolivian government’s support for 

the case).

156. Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014).
International Human Rights Litigation

30

not less clear where they are actions of a foreign national rather than a 

U.S. citizen.157

At the time of this writing, many federal courts (including the 

Fourth, Ninth, and Eleventh Circuit Courts of Appeals) treat a defendant’s citizenship as simply one factor in determining whether the case 

sufficiently “touches and concerns” the territory of the United States.158

As one district court put it, under this line of reasoning, “a defendant’s 

citizenship can only operate to push across the finish line, so to speak, an 

ATS claim that alleges enough relevant conduct in the United States.”159

Another important factor is the nature and degree of tortious conduct within the United States that will rebut the presumption against extraterritorial application. (Because all of the relevant conduct in Kiobel

occurred overseas, the Supreme Court did not need to consider the role

of domestic conduct in order to resolve that case.160) It has been left to 

the lower federal courts to sort this out, although “Kiobel has not given

courts a road map for answering this question.”161

 

157. Id. at 189 (internal citations omitted). See also Balintulo v. Daimler AG, 727 

F.3d 174, 190 n.24 (2d Cir. 2013) (holding that “nothing in the Court’s reasoning in 

Kiobel suggests that the rule of law it applied somehow depends on a defendant’s 

citizenship”).

158. See, e.g., Doe v. Drummond Co., 782 F.3d 576, 600 (11th Cir. 2015) (considering as relevant factors “the U.S. citizenship and corporate status of Defendants, the U.S. 

interests implicated by Plaintiffs’ claims, and the U.S. conduct alleged”); Al Shimari v. 

CACI Premier Tech., Inc., 758 F.3d 516, 530–31 (4th Cir. 2014) (holding that ATS claims 

against a U.S. corporation touched and concerned the United States where the contract 

giving rise to the alleged violations was made in the United States and company managers 

also approved the tortious conduct and attempted to cover it up there); Mujica v. AirScan 

Inc., 771 F.3d 580, 591–92, 594 (9th Cir. 2014) (holding that citizenship alone was insufficient to rebut the presumption against extraterritorial application of the ATS); Sexual 

Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 322 (D. Mass. 2013) (holding that “an 

exercise of jurisdiction under the ATS over claims against an American citizen who has 

allegedly violated the law of nations in large part through actions committed within this 

country fits comfortably within the limits described by Kiobel”).

159. Doe v. Exxon Mobil Corp., No. 01–1357, 2015 WL 5042118, at *7 (D.D.C. July

6, 2015).

160. See Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013).

161. Giraldo v. Drummond Co., No. 2:09–CV–1041, 2013 WL 3873960, at *5 (N.D. 

Ala. July 25, 2013) (noting that courts must determine “[w]hat then is “enough” such that 

the conduct [overseas] touches and concerns the United States with sufficient force?”).
II. Federal Law—Civil Remedies for International Human Rights Violations

31

When the defendants were U.S. citizens and all relevant conduct occurred in the United States, district courts found the presumption rebutted in a case relating to financial support for terrorists162 and another involving technology that allowed the Chinese government to “detect, 

monitor, detain, suppress, and torture dissidents.”163 Citizenship and domestic conduct also were considered by the district court in determining 

that the presumption was rebutted in Sexual Minorities Uganda v. 

Lively,

164 which involved claims that the defendant deliberately helped a 

foreign nation create “an atmosphere of harsh and frightening repression 

against LGBTI people in Uganda.”165

Considering the impact of Kiobel, the Lively court noted first that the 

defendant was a U.S. citizen residing in Massachusetts. Second, while 

some conduct occurred in Uganda and the impact of the violations was 

felt there, there also was significant conduct within the United States over 

a period of years. The court held that the ATS claims could proceed, 

noting that

[t]he fact that the impact of Defendant’s conduct was felt in Uganda 

cannot deprive Plaintiff of a claim. Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the 

United States are analogous to a terrorist designing and manufacturing 

a bomb in this country, which he then mails to Uganda with the intent 

that it explode there. The Supreme Court has made clear that the presumption against the extraterritorial application of a statute comes into 

play only where a defendant’s conduct lacks sufficient connection to the 

United States.166

 

162. See Krishanti v. Rajaratnam, No. 2:09–CV–05395, 2014 WL 1669873 (D.N.J. 

Apr. 28, 2014) (allowing plaintiffs to proceed on ATS claims against U.S. citizen defendants because all conduct relating to alleged financial support for overseas terrorist 

groups occurred within the United States).

163. See Du Daobin v. Cisco Sys., Inc., 2 F. Supp. 3d 717, 720, 728 (D. Md. 2014)

(assuming, without deciding, that the presumption against extraterritoriality was overcome because the defendants were a U.S. citizen and U.S. corporation with offices nationwide and the alleged conduct “took place predominantly, if not entirely, within the 

United States”).

164. Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 309 (D. Mass. 2013).

165. Id.

166. Id. at 321–22.
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32

Several other cases also considered the extent to which conduct in 

the United States can give rise to ATS claims for injuries that manifest 

abroad. In Ates v. Gülen,

167 the district court considered claims by Turkish nationals against an exiled cleric who had a substantial online following. The plaintiffs alleged that statements by the cleric in two online 

videos and a television interview encouraged the cleric’s followers to arbitrarily arrest and persecute the plaintiffs. The court found the allegations insufficient to rebut the presumption against extraterritorial application of the ATS because the plaintiffs “offer[ed] only circumstantial 

and tenuous allegations of a connection between [the cleric’s] domestic

conduct and the violations of Plaintiffs’ rights in Turkey.”168

On the other hand, the domestic violations alleged in Salim v. Mitchell were far more detailed.169 Salim involved claims by foreign nationals 

against the two psychologists who allegedly designed and helped to operate the CIA’s secret enhanced interrogation program in the years after 

the 9/11 attacks. The plaintiffs alleged torture and other specific injuries 

by CIA operatives using the methods prescribed by the interrogation 

program.170 The court considered the defendants’ U.S. citizenship and 

domicile as factors but also noted that the interrogation plan was designed in the United States (pursuant to contracts with the U.S. government entered into within the United States) and implemented by the CIA 

(with advice from the defendants) at detention facilities operated by the 

U.S. government.171 The Salim court determined that these allegations 

were sufficient to overcome the presumption against extraterritorial application of the ATS.172 The Second Circuit also found the presumption 

 

167.	Ates v. Gülen, No. 3:15-CV-2354, 2016 WL 3568190 (M.D. Pa. June 29, 2016).

168. Id. at *13.

169. Salim v. Mitchell, No. CV-15-0286, 2016 WL 1717185 (E.D. Wash. Apr. 28, 

2016).

170. Id. at *2 (noting that “[t]he allegations of ongoing torture are . . . pled with 

great specificity”). 

171. Id. at *8.

172. Id. The court also noted the similarity between the claims in the case before it 

and those at issue in Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 

2014) (claims against a U.S. civilian military contractor arising out of alleged torture and 

war crimes committed at the Abu Ghraib prison in Iraq). Id.
II. Federal Law—Civil Remedies for International Human Rights Violations

33

displaced in a case involving terrorists who made extensive use of the 

U.S. banking system in New York to fund terrorist groups overseas.173

Eschewing any consideration of an ATS defendant’s citizenship, the 

Second Circuit has focused solely on the defendant’s conduct, holding 

the presumption rebutted where a complaint identifies specific domestic 

acts that also constitute a viable ATS claim:

[P]laintiffs have alleged specific, domestic conduct in the complaint—

namely, Chevron’s oil purchases, financing of oil purchases, and delivery of oil to another U.S. company, all within the United States; and 

BNP’s use of a New York escrow account and New York-based “financing arrangements” to systematically enable illicit payments to the 

Saddam Hussein regime that allegedly facilitated that regime’s violations of the law of nations, namely war crimes, genocide, and other 

crimes against humanity. This U.S.-based conduct “touches and concerns” the United States to satisfy the first prong of our extraterritoriality analysis.174

Claims have failed when such U.S.-based conduct is lacking, however. The absence of any conduct that would constitute aiding and abetting, for example, was fatal to ATS claims against U.S. corporate defendants who allegedly participated in South Africa’s apartheid regime for 

profit.175 Similarly, in Adhikari v. Daoud & Partners,

176 the district court 

held that the absence of “cover up” activities by U.S.-based employees (as 

opposed to concealment by foreign employees of a U.S. company) con-

 

173. See Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 215–17 (2d Cir. 2016)

(finding that the plaintiffs’ claims against a foreign bank sufficiently touched and concerned the United States to displace the presumption against extraterritorial application 

of the ATS but nevertheless dismissing on the grounds that the defendant bank was a 

corporation).

174. Mastafa v. Chevron Corp., 770 F.3d 170, 195 (2d Cir. 2014). The court dismissed the ATS claims, however, because the conduct alleged in the complaint failed to 

meet the Second Circuit’s “purpose” standard for aiding and abetting liability. Id. at 192–

94.

175. See Balintulo v. Ford Motor Co., 796 F.3d 160, 170 (2015) (holding that “because plaintiffs fail plausibly to plead that any U.S.-based conduct on the part of either 

Ford or IBM aided and abetted South Africa’s asserted violations of the law of nations, 

their claims cannot form the basis of our jurisdiction under the ATS”), cert. denied, 136 S. 

Ct. 2485 (2016) (mem.).

176. 95 F. Supp. 3d 1013, 1020–21 (S.D. Tex. 2015). [Appeal Filed by Ramchandra 

Adhikari et al. v. Daoud & Partners et al., 5th Cir., Apr. 21, 2015.]
International Human Rights Litigation

34

firmed that the human trafficking that “occurred in Nepal; Jordan; Iraq; 

and points in transit between and among these foreign locations” failed 

to touch and concern the territory of the United States.

Courts thus must decide whether the allegations against an ATS defendant “tie[] the relevant human rights violations to actions taken 

within the United States,”177 with the burden of proof resting on the 

plaintiff.

178 While the threshold remains unclear at the time of this writing, it seems that courts are focusing on the degree of tortious conduct (as 

opposed to ordinary business activity) committed by actors within the 

United States. As one district court put it: 

While this standard is fairly opaque, it appears to require that there be 

specific, substantial allegations of conduct occurring in the United 

States that supports an ATS cause of action. Although the U.S.-based 

conduct need not allege a completed tort under the ATS, the domestic 

conduct must indicate a U.S. focus to the claims and must be relevant 

to the claims, i.e. must support the claims.179

The inquiry thus appears to turn on the extent and nature of the defendant’s conduct within the United States and the impact of that conduct on the injuries caused. ATS claims grounded in theories of vicarious 

liability, in which a U.S. company merely exercises the control necessary 

to conduct business in a foreign location, have proved difficult to sustain.

180 Williams v. AES Corp., for example, involved personal injury al-

 

177. See Balintulo v. Daimler AG, 727 F.3d 174, 192 (2d Cir. 2013) (dismissing ATS 

claims that South African subsidiary corporations aided and abetted the South African 

government’s violations of international law).

178. See, e.g., Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1027–29 (9th Cir. 2014), reh’g 

denied, 788 F.3d 946 (9th Cir. 2015) (remanding to allow plaintiffs to amend their complaint to describe how defendants’ conduct “touched and concerned” the United States); 

Adhikari v. Daoud & Partners, No. 09–CV–1237, 2013 WL 4511354, at *7 (S.D. Tex. Aug. 

23, 2013) (burden rests on plaintiff to displace presumption against extraterritorial application), rev’d on other grounds, 994 F. Supp. 2d 831 (S.D. Tex. 2014) (dismissing TVPRA 

claims).

179. Doe v. Exxon Mobil Corp., No. 01–1357, 2015 WL 5042118, at *6 (D.D.C. July

6, 2015).

180. See, e.g., Balintulo, 727 F.3d at 192 (2d Cir. 2013) (“Because the defendants’

putative agents did not commit any relevant conduct within the United States giving rise 

to a violation of customary international law—that is, because the asserted violation[s] of 

the law of nations occurr[ed] outside the United States—the defendants cannot be vicariously liable for that conduct under the ATS.”) (internal quotations and citations omitted).
II. Federal Law—Civil Remedies for International Human Rights Violations

35

legedly arising out of substandard electricity provided by a Cameroonian 

power company and its Virginia parent corporation.181 Although the 

power was generated in Cameroon and the alleged injuries occurred 

there, the plaintiffs argued that the presumption against extraterritorial 

application should be rebutted “where the [U.S.] corporation profits 

from and is actively involved in the decision-making of its foreign subsidiaries.”182 The Williams court disagreed, holding that this was exactly

the type of “mere corporate presence” held insufficient in Kiobel.

183

Other federal cases suggest that even more overt conduct in the 

United States—such as consenting to murders,184 tacitly approving tortious violations overseas,185 or even approving and concealing violations186—may not be enough to rebut the presumption against extra-

 

See also Adhikari v. Daoud & Partners, No. 09–CV–1237, 2013 WL 4511354, at *7 (S.D. 

Tex. Aug. 23, 2013) (holding that “mere corporate presence” was insufficient and dismissing ATS claims against U.S. military contractor when plaintiffs failed to establish 

“sufficient domestic conduct by [the U.S. corporate defendant] to ‘displace the 

presumption’” against extraterritorial application), rev’d on other grounds, 994 F. Supp. 2d 

831 (S.D. Tex. 2014) (where legislative amendment allowing extraterritorial jurisdiction 

of the TVPRA was not retroactive, TVPRA claims predating the amendment must be 

dismissed).

181. Williams v. AES Corp., 28 F. Supp. 3d 553 (E.D. Va. 2014).

182. Id. at 568.

183. Id. (quoting Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1670 (2013)).

The ATS claim also failed under Sosa because the complaint alleged no violation of a 

specific, universal, and obligatory norm of international law. Id. 

184. See, e.g., Doe v. Drummond Co., 782 F.3d 576, 599 (11th Cir. 2015) (dismissing 

ATS claims against U.S. corporate parent where “there are no distinguishable allegations 

or evidence of conduct in the United States ‘directed at’ the extrajudicial killings and war 

crimes, and ‘mere consent’ is not enough”).

185. See, e.g., Baloco v. Drummond Co., 767 F.3d 1229, 1236–38 (11th Cir. 2014) (in 

a case alleging corporate support for the murder of union leaders in Colombia, holding 

that even if “the ‘relevant conduct’ inquiry extends to the place of decision-making—as 

opposed to the site of the actual ‘extrajudicial killing’—the allegations in the First 

Amended Complaint still fall short of the minimum factual predicate warranting the 

extraterritorial application of the ATS”). 

186. See, e.g., Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 (11th Cir. 2014)

(allegations that corporate officials in the United States reviewed, approved, and concealed payments and weapons shipments to Colombian terrorist and paramilitary organizations by corporate subsidiaries, which led to torture, murder, and other human rights 

violations in Colombia), cert. denied, 135 S. Ct. 1842 (2015) (mem.).
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36

territorial application of the ATS. Jovic v. L-3 Services, Inc.,

187 for 

example, involved a U.S. private military company that negotiated a 

contract with foreign military personnel, who allegedly committed war 

crimes and related offenses in the course of fulfilling the contract. The 

district court dismissed the ATS claims, finding that the U.S.-based conduct was insufficient to displace the presumption against extraterritorial 

application of the ATS. Although the contract was negotiated with foreign military leaders in Virginia and some planning and development 

activities were conducted there, because “the substantial part of [the defendant’s] challenged conduct occurred extraterritorially,” the claims 

failed to touch and concern the territory of the United States.188

Another district court similarly held that awareness of foreign violations was insufficient, even when combined with some involvement in 

planning. Doe I v. Cisco Systems, Inc.

189 involved the creation of a customized electronic monitoring system allegedly used by the Chinese government to identify, persecute, and torture members of the minority Falun 

Gong religious sect. The court held that the

[d]efendants’ creation of the Golden Shield [monitoring] system, even 

as specifically customized for Chinese authorities and even if directed 

and planned from San Jose, does not show that human rights abuses 

perpetrated in China against Plaintiffs touch and concern the United 

States with sufficient force to overcome the ATS’s presumption against 

extraterritorial application.190

The cases discussed above may reflect an emerging division among 

the circuits over the nature and degree of domestic conduct that will rebut the presumption against extraterritorial application of the ATS.

Other federal courts have held the presumption rebutted in similar types 

of cases alleging domestic approval and concealment of overseas violations191 or other indicia of domestic corporate control over the 

perpetrators.

192

 

187. Jovic v. L-3 Servs., Inc., 69 F. Supp. 3d 750 (N.D. Ill. 2014).

188. Id. at 758–60.

189. Doe I v. Cisco Sys., Inc., 66 F. Supp. 3d 1239 (N.D. Cal. 2014), appeal filed, Doe 

v. Cisco Sys., Inc., No. 15-16909 (9th Cir. Sept. 24, 2015).

190. Id. at 1246–47.

191. See, e.g., Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 530–31 (4th Cir. 

2014) (ATS claims against U.S. corporation touched and concerned the United States 
II. Federal Law—Civil Remedies for International Human Rights Violations

37

Even when there is no alleged involvement by U.S. corporations or 

citizens or the federal government, there appear to be cases in which “an 

act occurring outside the United States could so obviously touch and 

concern the territory of the United States that the presumption against 

extraterritorial application of the ATS is displaced.”193 In Mwani v. Bin 

Laden, the district court considered ATS claims arising out of terrorist 

attacks on the U.S. embassy in Nairobi. The court analyzed the national 

interests of the United States in two respects—the intentional nature of 

the acts in question and the places that they occurred.

The Mwani court found that the terrorist acts were specifically intended to injure the United States and its citizens, such that the United 

States had a greater national interest in redressing them through the federal courts.

194 The court also considered the locus of the underlying conduct, determining that at least some of the planning activity of the terrorist conspirators occurred in the United States.195

Based on these two considerations, the Mwani court held that the 

presumption against extraterritorial application of the ATS was rebutted, 

such that the plaintiffs could proceed on their ATS claims. While recog-

 

because they related to a U.S. contract and because corporate managers approved the 

tortious conduct and attempted to conceal it in the United States). See also Cardona, 760 

F.3d at 1192, 1194 (Martin, J., dissenting) (arguing that the court had jurisdiction over the 

ATS claims “because they allege violations of international law by an American national”—“that Chiquita’s corporate officers reviewed, approved, and concealed payments 

and weapons transfers to Colombian terrorist organizations from their offices in the 

United States with the purpose that the terrorists would use them to commit extrajudicial 

killings and other war crimes”).

192. See Doe v. Exxon Mobil Corp., No. 01–1357, 2015 WL 5042118, at *14 (D.D.C. 

July 6, 2015) (holding that allegations of (a) actual knowledge by U.S. corporate officials 

that foreign security forces were committing human rights violations on the corporate 

defendant’s property using its own equipment; (b) control, planning, and deployment of 

such foreign forces by U.S.-based officials; and (c) the corporate defendant’s U.S. citizenship and principal place of business in the United States together were sufficient to rebut 

the presumption against extraterritorial application of the ATS).

193. Mwani v. Bin Laden, 947 F. Supp. 2d 1, 4 (D.D.C. 2013).

194. Id. at 5 (noting that it was “obvious that a case involving an attack on the 

United States Embassy in Nairobi is tied much more closely to our national interests than 

a case whose only tie to our nation is a corporate presence here”).

195. Id. (discussing “evidence that the attackers were involved in an ongoing conspiracy to attack the United States, and overt acts in furtherance of that conspiracy took

place within the United States”).
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38

nizing the limitations set forth in Kiobel, the district court opined that 

“[s]urely, if any circumstances were to fit the Court’s framework of 

‘touching and concerning the United States with sufficient force,’ it 

would be a terrorist attack that 1) was plotted in part within the United 

States, and 2) was directed at a United States Embassy and its employees.”196 In You v. Japan,

197 the district court reached similar conclusions. 

It found a sufficient nexus between the plaintiffs’ ATS claims and the territory of the United States in a case involving Japanese war crimes in occupied U.S. territories during World War II.

In contrast, cases with weaker links between violations and the territory of the United States may not survive, even if they involve injury to 

U.S. citizens as well as the alien plaintiffs. In Kaplan v. Central Bank of 

Islamic Republic of Iran, the court dismissed the Israeli plaintiffs’ ATS

claims under Kiobel even though U.S. citizens were among the victims 

(along with Israeli and Canadian nationals).198 Federal courts have also 

dismissed ATS cases relating to apartheid in South Africa199 and genocide 

during World War II.

200 Thus, the mere demonstration of compelling 

U.S. national or foreign policy interests, by itself, is unlikely to rebut the 

presumption against extraterritorial application of the ATS.

201 Courts do 

 

196. Id.

197. You v. Japan, No. C-5-03257, 2015 WL 6689398, at *1–2 (N.D. Cal. Nov. 3, 

2015). The case was dismissed, however, because it presented a nonjusticiable political 

question and because the claims in question were time barred. Id. at *2–5.

198. Kaplan v. Cent. Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185 (D.D.C. 

2013) (dismissing case involving rocket attacks launched from Lebanon into Israel that 

allegedly were funded by Iran).

199. See Balintulo v. Daimler AG, 727 F.3d 174, 194 (2d Cir. 2013) (rejecting claim 

that presumption against extraterritorial application did not apply if defendants were 

American citizens or when the case itself involved “compelling American interests in 

supporting the struggle against apartheid in South Africa”).

200. See Simon v. Republic of Hungary, 37 F. Supp. 3d 381, 444 (D.D.C. 2014) (dismissing ATS claims and holding that although “[n]o one disputes that the ‘United States 

not only has an important interest in preventing and stopping acts of genocide, but also 

in bringing some measure of justice to the victims and survivors of these acts’ . . . . [t]he 

majority of the Supreme Court concluded that adjudication in federal court was not the 

appropriate mechanism to address such atrocities as genocide committed overseas by 

foreign actors . . . and instead defer[red] such decisions, quite appropriately, to the political branches.”) (internal citations and quotations omitted). 

201. The relevant question is not the clarity or importance of the policy in question, 

but rather the proper role of the judiciary in furthering it. See Balintulo, 727 F.3d at 191–
II. Federal Law—Civil Remedies for International Human Rights Violations

39

have the discretion to grant plaintiffs leave to amend their complaints in 

order to allege conduct that may rebut the presumption against extraterritoriality, unless such amendment clearly would be futile (e.g., “foreign 

cubed” cases with no U.S. connections at all).202

B. Rules of Decision in ATS Cases

In Sosa, the Supreme Court determined that the existence of a cause of 

action under the ATS should be decided with reference to international 

law.

203 The Court has not yet decided whether international law should 

also determine a number of other important issues that arise in ATS

cases. In the years since Sosa was decided, there have been wide divisions 

among the federal courts (at times, even among judges in the same case) 

on this question.

Questions such as whether state action requirements (where applicable) are fulfilled,

204 the applicable standard for aiding and abetting liabil-

 

92 (holding that “the presumption against extraterritoriality applies to the statute” itself, 

such that “a common-law cause of action brought under the ATS cannot have extraterritorial reach simply because some judges, in some cases, conclude that it should”).

202. See, e.g., Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1027–29 (9th Cir. 2014) (remanding to allow plaintiffs to amend their complaint to describe how defendants’ conduct “touched and concerned” the United States); Doe v. Exxon Mobil Corp., 69 F. Supp. 

3d 75, 96–97 (D.D.C. 2014) (granting leave to amend ATS complaint); In re S. African 

Apartheid Litig., 15 F. Supp. 3d 454, 460 (S.D.N.Y. 2014) (granting leave to move for permission to file an amended ATS complaint). See also Ashcroft v. Iqbal, 556 U.S. 662, 686–

87 (2009) (remanding for lower court to determine whether plaintiff should be given 

leave to amend).

203. Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 (2004).

204. Compare, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir. 2009) (drawing on 42 U.S.C. § 1983 for guidance on making this determination for non-governmental actors), Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1247 (11th Cir. 

2005) (same), and Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995) (state actor question is 

governed by federal law), with Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 25–26 

(D.D.C. 2005) (holding that claims of torture and extrajudicial killing did not apply because state action/color-of-law jurisprudence from § 1983 case law did not apply under 

the Supreme Court’s decision in Sosa). On appeal, the D.C. Circuit declined to consider

the issue. Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 39 n.27 (D.C. Cir. 2011) (“Because 

Exxon is subject to ATS liability on an aiding and abetting theory, the court need not 

address appellants’ alternative contention, which Exxon challenges, that Exxon is subject 

to ATS liability as a state actor acting under color of Indonesian law.”).
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40

ity,205 and whether corporations can be held liable for human rights violations206 are all impacted greatly by whether courts look to federal 

common law or to international law for the answers. Each of these questions is discussed below.

1. State Action Requirements Under the ATS

As discussed above, a key question in ATS claims is whether a human 

rights plaintiff has alleged a violation of customary international law that 

is sufficiently definite to support a cause of action under the Sosa test.

This analysis requires the court to consider the identity of the alleged 

perpetrator as well as the nature of the conduct itself.207 Both factors can 

impact whether a cognizable violation of human rights exists.

Some conduct constitutes a violation of international law only when 

it is perpetrated by a state actor or under color of law. Torture and extrajudicial killing certainly violate the law of nations when perpetrated by 

state authorities, for example.208 So does a governmental policy of systematic racial discrimination.209 The absence of such state involvement can 

be fatal to an ATS claim. It often is the auspices of state authority used to 

violate individual rights that transforms ordinary domestic crimes into 

violations of the law of nations. In Estate of Amergi v. Palestinian Au-

 

205. Compare, e.g., Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 130 (2d Cir. 

2010), reh’g denied, 642 F.3d 379 (2d Cir. 2011) (en banc), cert. granted, 132 S. Ct. 472 

(2011) (mem.) (international law determined question of aiding and abetting), and Khulumani v. Barclay Nat’l Bank, 504 F.3d 254 (2d Cir. 2007) (Katzmann, J.) (holding that 

aiding and abetting liability was determined by reference to international law), with id.

(Hall, J., concurring) (aiding and abetting applied but only based on federal common law) 

and id. (Korman, J., dissenting) (international law governed the question but did not 

apply in this case).

206. Compare, e.g., Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 130 (2d Cir. 

2010), reh’g denied, 642 F.3d 379 (2d Cir. 2011) (en banc), cert. granted, 132 S. Ct. 472 

(2011) (mem.) (international law determined question of corporate liability), with Flomo 

v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019–20 (7th Cir. 2011) (declining to 

follow the Second Circuit and noting that corporate liability did not turn on international 

law alone because “[i]nternational law imposes substantive obligations and the individual 

nations decide how to enforce them”).

207. See Sosa v. Alvarez-Machain, 542 U.S. 692, 732 n.20 (2004).

208. See In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 

(9th Cir. 1994) (summary execution and forced disappearances).

209. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1209–10 (9th Cir. 2007).
II. Federal Law—Civil Remedies for International Human Rights Violations

41

thority, for example, the Eleventh Circuit dismissed the plaintiff’s ATS 

claims on the grounds that a single killing by a non-state actor did not 

violate the law of nations.

210 However, in Doe v. Exxon Mobil Corp., the 

state action requirement was deemed satisfied for ATS claims alleging 

injuries by foreign military personnel who were working for a corporate 

defendant as overseas security forces.

211

Even when state involvement is conceded or otherwise is clear, the 

underlying conduct must violate international law in order to support a 

claim under the ATS. For example, the mere threat of extrajudicial killings does not qualify as a violation of the law of nations.212 Nor does a 

single murder perpetrated by a drunk government security officer,213 false 

arrest,214 government abuse leading to “constructive” expulsion from a

homeland,215 a government taking its own citizens’ property,216 or the 

intentional infliction of emotional distress by state actors.217

That said, certain conduct violates the “law of nations” regardless of 

whether the perpetrator acts on behalf of a state or under color of foreign 

law. It is the heinousness of the underlying conduct itself, rather than the 

identity of the actor engaged in it, that transforms it into a violation of 

 

210. Estate of Amergi v. Palestinian Auth., 611 F.3d 1350, 1365 (11th Cir. 2010).

211. Doe v. Exxon Mobil Corp., No. 01–1357, 2015 WL 5042118, at *3 (D.D.C. July

6, 2015) (holding that conduct “may be state action when it results from the State’s 

exercise of ‘coercive power’”) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic 

Ass’n, 531 U.S. 288, 296 (2001)).

212. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 37 (D.D.C. 2010) (holding that 

“there is no basis for the assertion that the threat of a future state-sponsored extrajudicial 

killing—as opposed to the commission of a past state-sponsored extrajudicial killing—

constitutes a tort in violation of the ‘law of nations’”).

213. See In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569, 590 (E.D. Va. 2009).

214. See Mora v. New York, 524 F.3d 183, 209 (2d Cir. 2008) (noting that a “reckless 

policeman” was hardly an enemy of humankind).

215. See Xuncax v. Gramajo, 886 F. Supp. 162, 189 (D. Mass. 1995).

216. See Guinto v. Marcos, 654 F. Supp. 276, 280 n.1 (S.D. Cal. 1986) (“A taking or 

expropriation of a foreign national’s property by his government is not cognizable under 

[the ATS].”). But see Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 674–77 (7th Cir. 

2012) (in a non-ATS case involving the expropriation exception to the FSIA, the court 

affirmed the general rule on “domestic takings” but held that where expropriations were 

combined with other serious human rights violations and helped to further them, the 

plaintiffs nevertheless stated a viable claim for the expropriation).

217. See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1183 (C.D.

Cal. 2005).
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42

international law. Such torts almost always involve either international 

crimes or similar egregious violations of fundamental human rights. Examples include genocide,

218 slavery and slave trading,219 war crimes,220

and crimes against humanity.221

2. Aiding and Abetting, and Secondary Liability Under the ATS

While many ATS cases are brought against the direct perpetrators of human rights abuses,222 a growing number have been asserted against defendants who are alleged to be accountable for authorizing or facilitating

such violations by others. Cabello v. Fernández-Larios, for example, involved claims that a former Chilean military officer should be held liable 

for assisting in violations committed by other Chilean officials.223 The 

Eleventh Circuit allowed the case to proceed. Although the defendant did 

not personally engage in the alleged murders, the court found that principles of accomplice liability were well established in customary international law.224

At the time of this writing, the federal courts of appeals are divided 

over the precise circumstances under which private actors (individuals or 

corporate entities225) can be held liable for assisting either state actors or 

other private parties in violating international law. Although human 

rights claims have been allowed to proceed on the basis of theories of 

 

218. See, e.g., Kadic v. Karadžić, 70 F.3d 232, 241 (2d Cir. 1995).

219. See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163, 206 (2d Cir. 2009).

220. See, e.g., Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1266–67 (11th Cir. 2009)

(torture and murder committed in the course of war crimes), overruled on other grounds 

by Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that only natural persons could be held liable under the TVPA).

221. See, e.g., Abdullahi, 562 F.3d at 187 (holding that “appellants have pled facts 

sufficient to state a cause of action under the ATS for a violation of the norm of customary international law prohibiting medical experimentation on human subjects without 

their consent”).

222. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

223. Cabello v. Fernández-Larios, 402 F.3d 1148 (11th Cir. 2005).

224. Id. at 1157–58.

225. The special liability issues for corporate entities are discussed in Part II.B.3 

infra.
II. Federal Law—Civil Remedies for International Human Rights Violations

43

“command” responsibility for conduct by subordinates226 and tortious 

conspiracy,227 the most common theory of indirect liability is aiding and 

abetting.228 In Bowoto v. Chevron Corp.,

229 for example, a group of Nigerian villagers sued an oil company for aiding and abetting Nigerian military personnel in crimes against humanity, torture, and other attacks.

The district court surveyed prior case law and determined that “the vast 

majority of courts to have considered the issue have found that aiding 

and abetting liability is available under the ATS,”230 although a small minority have reached the opposite conclusion.

231

 

226. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9th Cir. 1996) (noting 

that “[t]he United States has moved toward recognizing similar ‘command responsibility’

for torture that occurs in peacetime”).

227. See, e.g., Cabello, 402 F.3d at 1157–58. But see Presbyterian Church of Sudan v. 

Talisman Energy, 582 F.3d 244, 260 (2d Cir. 2009) (rejecting conspiracy claims on the 

grounds that the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557, 610 

(2006), foreclosed conspiratorial liability under international law for crimes other than 

genocide and a common plan to wage aggressive war).

228. See, e.g., Romero v. Drummond Co., 552 F.3d 1303, 1315–16 (11th Cir. 2008)

(allowing aiding and abetting liability under the ATS); Khulumani v. Barclay Nat’l Bank 

Ltd., 504 F.3d 254, 260–61 (2d Cir. 2007) (secondary liability in connection with apartheid-era conduct of South Africa).

229. Bowoto v. Chevron Corp., No. C 99-02506 SI, 2006 WL 2455752 (N.D. Cal. 

Aug. 22, 2006).

230. Id. at *3–4, *7–8 (internal citations omitted) (citing Hilao v. Estate of Marcos,

103 F.3d 767 (9th Cir. 1996); Presbyterian Church of Sudan v. Talisman Energy, 244 F. 

Supp. 2d 289, 321–24 (S.D.N.Y. 2003); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. 

Supp. 2d 86, 100 (D.D.C. 2003); and Cabello, 402 F.3d 1148). See also Romero v. 

Drummond Co., 552 F.3d 1303, 1315–16 (11th Cir. 2008) (allowing aiding and abetting 

liability under the ATS); In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 

826 (S.D.N.Y. 2005) (affirming that “courts . . . have almost unanimously permitted actions premised on a theory of aiding and abetting and conspiracy”).

231. See, e.g., Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 

2005) (holding that although “international law may recognize accomplice liability in 

some instances,” merely selling a product, without more, did not give rise to an ATS 

claim for aiding and abetting under Sosa); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 

24 (D.D.C. 2005) (holding that liability for “aiding and abetting” violations of international law was not actionable under the ATS). Note, however, that the district court in 

Doe relied squarely on the court’s reasoning in In re South African Apartheid Litigation,

346 F. Supp. 2d 538, 549–51 (S.D.N.Y. 2004), whose holding that “aiding and abetting”

violations of international law were not actionable under the ATS was subsequently over-
International Human Rights Litigation

44

The conduct element of aiding and abetting (about which there is 

consensus among the circuits) is that the defendant must provide practical assistance that has a substantial effect on the perpetration of the violation in question.232 Courts differ widely, however, on what mental state 

must accompany such conduct. The Fourth and Second Circuits, for example, have adopted a “purpose”233 standard that limits liability to deliberate conduct,234 whereas the D.C. and Eleventh Circuits allow secondary 

liability based on a broader “knowledge”235 standard.236 (The Ninth Circuit recently declined to reach a final resolution on the question.

237) Simi-

 

ruled by the Second Circuit in Khulumani v. Barclay National Bank, 504 F.3d 254, 260 

(2d Cir. 2007).

232. See, e.g., Khulumani, 504 F.3d at 277 (liability under international law for aiding 

and abetting the violations exists “when the defendant (1) provides practical assistance to 

the principal which has a substantial effect on the perpetration of the crime, and (2) does 

so with the purpose of facilitating the commission of that crime”).

233. “Purpose” is the subjective positive desire to engage in wrongful conduct or to 

have a wrongful result occur. See Model Penal Code § 2.02(a) (1985).

234. See, e.g., Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) (plaintiffs must show 

that defendants aided and abetted violations with the purpose of facilitating them); Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244, 259 (2d Cir. 2009) (same).

See also Mastafa v. Chevron Corp., 770 F.3d 170, 193–96 (2d Cir. 2014) (reaffirming the 

“purpose” standard adopted in Presbyterian Church of Sudan).

235. “Knowledge” is a subjective, practical certainty that a particular result will occur 

in the ordinary course of events, but without any positive desire to bring it about. See 

Model Penal Code § 2.02(b) (1985).

236. See, e.g., Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011)

(knowledge standard); Cabello v. Fernández-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005)

(same). See also Restatement (Second) of Torts § 876(b) (tortfeasor “is subject to liability 

if he . . . knows that the other’s conduct constitutes a breach of duty and gives substantial 

assistance or encouragement to the other to so conduct himself”).

237. See Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1024 (9th Cir. 2014) (“Here, we 

need not decide whether a purpose or knowledge standard applies to aiding and abetting 

ATS claims. We conclude that the plaintiffs’ allegations satisfy the more stringent purpose 

standard, and therefore state a claim for aiding and abetting slavery.”). See also Doe I v. 

Nestle USA, Inc., 788 F.3d 946 (9th Cir. 2015) (declining en banc review), and id. (Bea, J, 

dissenting) (arguing that en banc review should have been granted and that a purpose 

standard was required for aiding and abetting claims), cert. denied, Nestle U.S.A., Inc. v. 

John Doe I, 136 S. Ct. 798 (2016).
II. Federal Law—Civil Remedies for International Human Rights Violations

45

lar considerations arise when plaintiffs allege conspiracy to violate human rights.

238

To ascertain whether accessorial liability exists, the court must consider both (1) the source of the liability standard (e.g., whether liability is 

determined with reference to federal law or international law) and 

(2) what that body of law (federal or international) requires as the liability standard for aiding and abetting (e.g., whether the law in question 

requires purposeful or knowing conduct). The circuit split over aiding 

and abetting thus reflects the larger debate over whether international 

law supplies the mode of liability (e.g., method of breach) as well as the 

norm (duty) itself, or whether the mode of liability must instead be determined by reference to federal law.239

The question of accessorial liability is distinct from the vicarious liability principles reflected in the traditional tort doctrines of respondeat 

superior and agency. In Doe v. Exxon Mobil,

240 for example, the court allowed the case to proceed upon a showing that the corporate defendant 

exercised control over the activities of local Indonesian security forces 

that allegedly committed human rights violations. But a parent company 

cannot be held liable on such grounds when the culpable acts of employees cannot be imputed to its subsidiary companies.241

3. Corporate Liability Under the ATS

Corporations have been accused of a wide variety of egregious human 

rights violations in U.S. courts. Examples include

• a pharmaceutical company conducting nonconsensual medical 

experiments in the form of overseas drug trials;242

• a chemical distributor selling to late Iraqi dictator Saddam Hussein chemical weapon components used to manufacture mustard 

gas used against Kurdish enclaves in northern Iraq;243

 

238. See, e.g., Presbyterian Church of Sudan, 582 F.3d at 260 (recognizing theory of 

conspiracy but holding that it requires “a criminal intention to participate in a common 

criminal design”).

239. See supra Part II.B.

240. Doe v. Exxon Mobil, 573 F. Supp. 2d 16 (D.D.C. 2008).

241. See In re Terrorist Attacks on Sept. 11, 2001, 740 F. Supp. 2d 494, 521–22 

(S.D.N.Y. 2010).

242. Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).
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• bankers assisting in Nazi plunder of private property that prevented French Jews from financing their escape from the country, 

leading to their deaths in the Holocaust;244

• human trafficking by a U.S. military contractor;

245

• forced labor and false imprisonment by a shipping firm;

246

• an oil company’s participation in slave trading, forced labor, and 

other atrocities by Burmese security agents providing security 

during the construction of an oil pipeline;247

• Arab banks administering the provision of financial benefits to 

the heirs of suicide bombers killed in attacks on civilians in 

Israel;248

• a tire manufacturer allowing rubber plantations to force children 

as young as six to perform heavy, hazardous labor;249

• a mining company aiding paramilitary groups in their murder of 

union leaders for attempting to organize mine workers;250

• the support and facilitation of apartheid in South Africa by more 

than fifty corporations that conducted business operations there 

for decades;251

• an energy company aiding the Sudanese government in war 

crimes, crimes against humanity, and genocide;252

• an oil company’s corporate support for killings, torture, and other 

human rights violations against Nigerian protestors by government security agents;253

• an oil company’s corporate control over Indonesian security 

forces who committed atrocities against Achenese villagers;254 and

 

243. Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011).

244. Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000).

245. Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D. Tex. 2009).

246. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008).

247. Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001).

248. Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007).

249. Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011).

250. Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).

251. Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007).

252. Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244, 259 (2d Cir. 

2009).

253. Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010).

254. Doe v. Exxon Mobil, 573 F. Supp. 2d 16 (D.D.C. 2008).
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47

• a private military contracting company providing interpreter services to facilitate the “enhanced interrogation” of detainees by 

CIA operatives.255

Despite this wave of cases, the federal courts are split over whether 

corporations may be held directly responsible (as distinct legal entities) 

for serious human rights violations. The Supreme Court set the stage for 

the debate in 2004 by suggesting in Sosa that lower courts should consider the extent to which corporations operating as private actors could

be held liable under the ATS.

256 The federal circuits are now divided on 

this question, putting the Second Circuit’s ruling against corporate liability at odds with decisions from the Seventh, Ninth, Eleventh, and D.C. 

Circuits upholding it.

In 2010, the Second Circuit rejected corporate liability in Kiobel v. 

Royal Dutch Petroleum Co., holding that the ATS did not provide for corporate liability because “the relatively few international treaties that impose particular obligations on corporations do not establish corporate 

liability as a ‘specific, universal, and obligatory’ norm of customary international law.”257 The Eleventh Circuit had reached the opposite conclusion two years earlier, holding in Romero v. Drummond Co. that the “text 

of the Alien Tort Statute provides no express exception for corporations, 

and the law of this Circuit is that this statute grants jurisdiction for complaints of torture against corporate defendants.”258

In subsequent cases, the Seventh,259 Ninth,260 and D.C.261 Circuits all 

declined to follow the Second Circuit’s reasoning, holding that the ATS

 

255. Saleh v. Titan Corp., 580 F.3d 1, 115 (D.C. Cir. 2009), cert. denied, 131 S. Ct. 

3055 (2011) (mem.).

256. Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 and nn.20–21 (2004).

257. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 118 (2d Cir. 2010), aff’d, 

133 S. Ct. 1659 (2013).

258. Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (internal citations omitted).

259. See Flomo v. Firestone Natural Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011)

(corporations are subject to ATS liability for torts committed in violation of international 

law).

260. See Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (finding “no legitimate 

basis for Rio Tinto’s position that the [ATS] itself is a complete bar to corporate liability”). See also Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014), reh’g 

denied, 788 F.3d 946 (9th Cir. 2015) (holding, in post-Kiobel decision affirming Sarei and 
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allowed liability against corporations and other artificial entities.262 The 

U.S. Supreme Court initially sought to resolve the division in Kiobel v. 

Royal Dutch Petroleum Co., granting certiorari on the following 

questions:

1. Whether the issue of corporate civil tort liability under the Alien Tort 

Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been 

treated by all courts prior to the decision below, or an issue of subjectmatter jurisdiction, as the court of appeals held for the first time.

2. Whether corporations are immune from tort liability for violations of 

the law of nations such as torture, extrajudicial executions or genocide, 

as the court of appeals decisions provides, or if corporations may be 

sued in the same manner as any other private party defendant under 

the ATS for such egregious violations, as the Eleventh Circuit has 

explicitly held.263

These questions ultimately were not resolved by the Court, which 

dismissed the claims in Kiobel based solely on the application of the 

rebuttable presumption against extraterritorial application of the ATS.

264

The dual questions on corporate liability were not answered directly by 

the Supreme Court, and the circuit courts thus remain divided. It is unlikely that the circuit split will resolve itself, however, even though the

 

the viability of corporate liability under the ATS, that “it would be contrary to both the 

categorical nature of the prohibition on slavery and the moral imperative underlying that 

prohibition to conclude that incorporation leads to legal absolution for acts of 

enslavement”).

261. See Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).

262. The Fourth Circuit declined to reach the question of corporate liability under 

the ATS in Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011). It subsequently allowed ATS 

claims to proceed, however, against a corporate defendant based at least in part on the 

defendant’s “status as a United States corporation[.]” See Al Shimari v. CACI Premier 

Tech., Inc., 758 F.3d 516, 530 (4th Cir. 2014). A Virginia district court also has held that 

corporations can be liable under the ATS. See In re Xe Services Alien Tort Litig., 665 F. 

Supp. 2d 569, 588 (E.D. Va. 2009) (“Nothing in the ATS or Sosa may plausibly be read to 

distinguish between private individuals and corporations.”).

263. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 136 (2d Cir. 2010), aff’d,

133 S. Ct. 1659 (2013).

264. See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663 (2013) (affirming Second Circuit decision “based on our answer to the second question [on 

extraterritoriality]”).
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49

Second Circuit at present is internally divided on whether the Supreme 

Court impliedly authorized ATS cases against corporations.

In his majority opinion in Kiobel, Chief Justice Roberts noted that 

because “[c]orporations are often present in many countries . . . mere 

corporate presence” was insufficient to overcome the presumption 

against extraterritorial application.265 In Daimler AG v. Bauman,

266 the 

Supreme Court addressed whether general personal jurisdiction over a 

foreign corporate defendant in an ATS case was proper. Courts within 

the Second Circuit have reached different conclusions about the implications of these two decisions for corporate ATS defendants.

Some have found that the Supreme Court did not alter the status quo 

by implication. For example, the panel decision in Chowdhury v. 

WorldTel Bangladesh Holding, Ltd.

267 focused primarily on extraterritorial application of the ATS, affirming dismissal of ATS claims where all 

violations took place overseas. But the decision included a footnote stating that claims against the corporate entity would have failed in any event 

because “the Supreme Court’s decision in Kiobel did not disturb the precedent of this Circuit . . . that corporate liability is not presently recognized under customary international law and thus is not currently actionable under the ATS.”268 A concurring opinion in Chowdhury

characterized this position as dicta, however, pointing out that other circuit courts had taken a different view.269 And in another Second Circuit 

case, the panel hearing Licci ex rel. Licci held that corporate liability postKiobel was an open question to be resolved in the first instance by the 

district court.270

District courts within the Second Circuit also have come to different 

conclusions. Some have determined that pre-Kiobel law within the 

Second Circuit remains in effect because the Supreme Court did not rule 

 

265. Id. at 1669.

266. Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Bauman is discussed in more 

detail in Part III.B, infra.

267. Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42 (2d Cir. 2014).

268. Id. at 49 n.6.

269. Id. at 55 n.2 (Pooler, J., concurring).

270. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 174 (2d 

Cir. 2013). Following reconsideration of the issue by the district court, the Second Circuit 

subsequently dismissed the case on the grounds of non-applicability of the ATS to corporate entities. See Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201 (2d Cir. 2016).
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directly on corporate liability.271 Others have held that the Supreme 

Court implicitly recognized corporate liability for ATS claims, thereby 

overruling the Second Circuit’s prohibition on them. In In re South African Apartheid Litigation, the district court found that it would make little 

sense for the Supreme Court to address legal issues involving corporate 

ATS defendants if ATS claims could not be asserted against them in the 

first place:

The Supreme Court’s opinions in Kiobel II and Daimler directly undermine the central holding of Kiobel I—that corporations cannot be 

held liable for claims brought under the ATS. The opinions explicitly 

recognize that corporate presence alone is insufficient to overcome the 

presumption against extraterritoriality or to permit a court to exercise 

personal jurisdiction over a defendant in an ATS case, respectively. By 

necessity, that recognition implies that corporate presence plus additional factors can suffice under either holding.272

Considering the question de novo, the district court subsequently 

determined that corporate liability was permissible under the ATS in the 

Second Circuit.273 The district court hearing Sikhs for Justice Inc. v. Indian National Congress Party reached the same conclusion on similar 

grounds.274

In late December 2015, a Second Circuit panel squarely considered 

the impact of the Supreme Court’s decision in Kiobel on the circuit’s 

prior rulings denying corporate liability under the ATS in In re Arab 

Bank, PLC Alien Tort Statute Litigation.

275 The court concluded that Ki-

 

271. See, e.g., Tymoshenko v. Firtash, No. 11–CV–2794, 2013 WL 4564646, at *3 

(S.D.N.Y. Aug. 28, 2013). See also Sikhs for Justice, Inc. v. Nath, 596 F. App’x 7, 10 (2d 

Cir. 2014) (because the dismissal was warranted based on the presumption against extraterritorial application, there was “no need to address . . . whether, under current law, corporate defendants are subject to suit under the ATS”).

272. In re S. African Apartheid Litig., 15 F. Supp. 3d 454, 460 (S.D.N.Y. 2014).

273. Id. at 460–64. The case ultimately was dismissed based on extraterritoriality. See 

In re S. African Apartheid Litig., 56 F. Supp. 3d 331 (S.D.N.Y. Aug. 28, 2015) (dismissing 

under Kiobel because all relevant conduct took place overseas).

274. Sikhs for Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp. 3d 334, 339–43

(S.D.N.Y. 2014), aff’d sub nom. Sikhs for Justice, Inc. v. Nath, 596 F. App’x 7 (2d Cir. 

2014). This case also was dismissed based on the prohibition on extraterritorial claims. Id. 

at 343–45.

275. In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015).
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51

obel did not unequivocally approve ATS liability for corporations, but it 

recognized that this certainly was a plausible reading of the Supreme 

Court’s decision.276 The court further noted that all other circuits had 

approved such liability, such that “on the issue of corporate liability under the ATS, [the Second Circuit] now appears to swim alone against the 

tide.”277 Although it affirmed the dismissal of ATS claims against the 

corporate defendant on the sole basis that the ATS precluded corporate 

liability, the panel expressly invited further review of the question by the 

full Second Circuit or the Supreme Court itself.

278

In a divided opinion, the Second Circuit declined to reconsider the 

case en banc.

279 Its judges offered a variety of justifications for why the 

question of corporate liability should or should not be considered by the 

full court in light of the divide with other federal circuits on this issue.280

Thus, absent a contrary determination by the Supreme Court, the Second 

Circuit is likely to continue to dismiss otherwise meritorious cases on the 

grounds that ATS does not apply to corporations.281

 

276. Id. at 151 (“We conclude that Kiobel I is and remains the law of this Circuit, 

notwithstanding the Supreme Court’s decision in Kiobel II affirming this Court’s judgment on other grounds. We affirm the decision of the district court on that basis . . . despite our view that Kiobel II suggests that the ATS may allow for corporate liability and 

our observation that there is a growing consensus among our sister circuits to that 

effect.”).

277. Id.

278. Id. at 151 (“We will leave it to either an en banc sitting of this Court or an eventual Supreme Court review to overrule Kiobel I if, indeed, it is no longer viable.”).

279.	In re Arab Bank, PLC Alien Tort Statute Litig., 822 F.3d 34 (2d Cir. 2016).

280. Compare, e.g., id. at 37–38 (Jacobs, J., concurring) (claiming that “the panel’s 

angst in having to follow Kiobel I was self-inflicted. The appeal could have been resolved 

under Kiobel II; if the problem was lack of briefing, briefing could have been ordered; if 

finding the right answer under Kiobel II was a strain on the panel, it could have remanded; if the easiest course was to follow a precedent that the panel dislikes, it could 

have done what appellate judges must frequently do: swallow hard.”) with id. at 40–41 

(Pooler, J., dissenting) (arguing that “this circuit yet again misses an opportunity to correct the panel’s majority opinion in [Kiobel I], an opinion which is almost certainly incorrect but continues to maintain a needless circuit split with every other circuit to address 

the question of whether corporations may be held civilly liable under the [ATS]”) and id.

at 38 (Cabranes, J., concurring) (disputing the dissent’s “suggestion that ‘Kiobel 

II strongly suggests that corporate liability does exist under the ATS’”).

281.	See, e.g., Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 217–19 (2d Cir. 

2016) (finding that the plaintiffs’ claims against a foreign bank sufficiently touched and 
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One final issue of corporate liability in human rights cases involves 

whether a parent company that is directly subject to U.S. jurisdiction is 

responsible, either directly or through various forms of indirect liability, 

for the actions of an overseas subsidiary that actually committed or facilitated the human rights violations. As noted above, this issue raises questions of superior responsibility and agency.282 Important questions are 

whether the parent can be held liable for some or all of the subsidiary’s 

conduct and the theory (or theories) on which such liability is predicated.

These inquiries are highly fact-specific and can involve the corporate law 

doctrines of alter-ego liability/piercing the corporate veil, single enterprise liability, agency, the parent aiding and abetting the conduct of the 

subsidiary, and ratification.283

The traditional tort doctrines of respondeat superior and agency allow claims based on the theory that a parent company should have exercised greater control over the subsidiary’s conduct.284 Whether a subsidiary will be deemed the agent of a parent turns on corporate law 

principles that determine whether the entities are truly independent. In 

Sinaltrainal v. Coca-Cola Co., for example, the Eleventh Circuit held that 

a parent company could be held responsible under the ATS for conduct 

by a wholly owned foreign subsidiary that was “an alter ego or agent” of

the parent.285 Because the subsidiary acted “under the management, con-

 

concerned the United States to displace the presumption against extraterritorial application of the ATS, but dismissing because the defendant bank was a corporation).

282. See infra Part II.B.2.

283. See Bowoto v. Chevron, 312 F. Supp. 2d 1229, 1235–40 (N.D. Cal. 2004) (collecting cases and discussing application of various corporate law theories in human rights 

context).

284. See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th 

Cir. 2005) (parent can be held liable for subsidiary’s conduct under either agency or alterego theory); Doe v. Exxon Mobil, 573 F. Supp. 2d 16 (D.D.C. 2008) (sufficient evidence of 

defendant controlling the activities of Indonesian security forces that allegedly committed 

human rights violations); Chowdhury v. WorldTel Bangl. Holding, Ltd., 588 F. Supp. 2d 

375 (E.D.N.Y. 2008) (agency and subsequent ratification of tortious conduct in case involving arrest and torture of plaintiff), rev’d on other grounds, 746 F.3d 42 (2d Cir. 2014)

(vacating jury verdict on ATS claims because all violations occurred overseas and thus 

failed to satisfy the Supreme Court’s territorial requirements under Kiobel).

285. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated by Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that TVPA was limited to 

defendants who were natural persons). 
II. Federal Law—Civil Remedies for International Human Rights Violations

53

trol, and direction of [the parent] . . . its separateness [was] illusory.”286 It 

is incumbent upon the plaintiff, however, to identify the nature of the 

relationship between domestic and overseas organizations and to sufficiently explain how one allegedly controlled the tortious conduct of the 

other.

287

Mere ownership of a subsidiary’s stock is insufficient to establish 

such control. The court will pierce the corporate veil only when doing so 

is necessary “to prevent fraud or other wrong, or where a parent dominates and controls a subsidiary.”288 This is a fact-specific inquiry that focuses on the conduct of both the parent and the subsidiary.289 Generally 

speaking, a “parent corporation and its subsidiary lose their distinct corporate identities when their conduct demonstrates a virtual abandonment of separateness.”290 In an ATS case brought against a multitude of 

corporations that had business operations in South Africa and dealings 

with the South African government during the apartheid era, one district 

court noted that considerations relevant to this determination include

• whether corporate formalities are respected, including whether 

the entities are treated as independent profit centers;

• whether the subsidiary is sufficiently capitalized, including whether the parent guarantees or forgives the subsidiary’s debts;

 

286. Id. at 1259.

287. See Sikhs for Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp. 3d 334, 345–48 

(S.D.N.Y. 2014), aff’d sub nom. Sikhs for Justice, Inc. v. Nath, 596 F. App’x 7 (2d Cir. 

2014) (dismissing, inter alia, based on the absence of any demonstrated linkage between 

the U.S. entity and the overseas conduct, but noting that the presumption against extraterritorial application of the ATS would not have been rebutted even if an agency relationship had been established).

288. In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 271 (S.D.N.Y. 2009) (internal quotations and citations omitted).

289. Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 31 (D.D.C. 2008) (issue is factspecific and “defies resolution by mechanical formulae” but requires at least that “the 

parent has manifested its desire for the subsidiary to act upon the parent’s behalf, the 

subsidiary has consented so to act, the parent has the right to exercise control over the 

subsidiary with respect to matters entrusted to the subsidiary, and the parent exercises its 

control in a manner more direct than by voting a majority of stock in the subsidiary or 

making appointments to the subsidiary’s Board of Directors” (internal quotations and 

citations omitted)). 

290. In re S. African Apartheid Litig, 617 F. Supp. 2d at 271–72 (internal quotations 

and citations omitted).
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• any intermingling of funds;

• overlapping personnel, including owners, officers, directors, and 

other employees, as well as shared resources (e.g., office space) 

between the entities; and

• the amount of discretion provided to the subsidiary, as reflected 

in arms-length dealings between the entities.291

Similar principles govern questions of parent–subsidiary liability in other 

types of human rights cases, such as those brought under the ATA292 and 

the TVPRA.

293 (Claims under these statutes are discussed below.294)

C. Torture Victim Protection Act

Congress enacted the Torture Victim Protection Act (TVPA) in 1992.

295

The TVPA provides a cause of action for torture or extrajudicial killing 

perpetrated under the “actual or apparent authority, or color of law, of 

any foreign nation.”296 The TVPA expanded the scope of civil human 

rights remedies available to U.S. citizens, since only aliens may file suit 

under the ATS.

297 Justice Kennedy’s concurring opinion in Kiobel stated

that the TVPA applied extraterritorially as Congress’s direct response to 

 

291. Id.

292. See, e.g., In re Terrorist Attack on Sept. 11, 2001, 740 F. Supp. 2d 494, 521–22

(S.D.N.Y. 2010) (“Mere allegations that defendant provided routine banking services, and 

of wrongful conduct committed by independent subsidiaries, are insufficient . . . .” absent 

a further basis for imputing culpable conduct by employees to corporate entities); In re 

Chiquita Brands Int’l, Inc. Alien Tort Statute and Shareholder Derivative Litig., 690 F. 

Supp. 2d 1296 (S.D. Fla. 2010) (U.S. corporation may be held liable under ATA where its 

Colombian subsidiary was wholly owned and controlled by the parent entity).

293. See, e.g., Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D. Tex. 2009)

(denying motion to dismiss where allegations sufficiently alleged that parent contractor 

“actively participated in and knowingly benefited from [a subsidiary’s] venture that involved forced labor and trafficking”).

294. See infra Part II.D.

295. See 28 U.S.C. § 1350(3)(b)(1) (note) (2012).

296. Id.

297. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104–05 (2d Cir. 2000)

(discussing expansion of jurisdiction).
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55

“serious concerns with respect to human rights abuses committed 

abroad.”298

The TVPA defines torture as

any act, directed against an individual in the offender’s custody or 

physical control, by which severe pain or suffering (other than pain or 

suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third 

person information or a confession, punishing that individual for an act 

that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind . . . .299

The TVPA’s direct reference to foreign law precludes it from serving

as a basis for claims against U.S. officials (or former officials) acting on 

the basis of U.S. law or implementing federal foreign policy decisions.300

In Arar v. Ashcroft, the Second Circuit noted that “[a]ny allegation arising under the TVPA requires a demonstration that the defendants acted 

under color of foreign law, or under its authority.”301 The court dismissed 

TVPA claims in which the plaintiffs alleged “at most” that the defendants 

“encouraged or solicited certain conduct by foreign officials” and therefore could not establish that the defendants acted on behalf of the Syrian 

government or under Syrian law.302 According to the Second Circuit, “an 

individual ‘acts under color of law [under the TVPA] . . . when he acts 

together with state officials or with significant state aid.’”303

Given these limitations under the TVPA, some federal courts have 

seen torture claims raised as Bivens actions against former U.S. govern-

 

298. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013) (Kennedy, J., 

concurring).

299. TVPA, 28 U.S.C. § 1350(3)(b)(1) (note).

300. See Schneider v. Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004) (because 

former Secretary of State was acting under U.S. law in carrying out American foreign 

policy, not foreign law, the TVPA could not apply to his conduct).

301. Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009).

302. Id.

303. Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007) (quoting 

Kadic v. Karadžić, 70 F.3d 232, 245 (2d Cir. 1995)).
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ment officials. These cases are subject to the limitations that otherwise 

apply to Bivens cases and have been largely unsuccessful to date.

304

Federal case law is presently divided on a number of TVPA issues:

• aiding and abetting liability;

• exclusivity of remedy;

• exhaustion of remedies;

• corporate liability; and

• relation to immigration law.

Each of these will be discussed in turn.

1. Aiding and Abetting Liability

There is an ongoing dispute over whether accessorial liability for aiding 

and abetting is cognizable under the TVPA. While the TVPA does not 

explicitly address modes of liability, some courts have found accessorial 

liability to be appropriate under the statute.

305 Others have not.306

 

304. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (former Attorney General was 

entitled to qualified immunity against Bivens claims arising out of the use of federal material witness warrants to facilitate preventative detention and interrogation of terrorism 

suspects); Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (denying Bivens claims 

against the FBI arising out of the alleged torture of a U.S. citizen during a counterterrorism investigation in Africa based on the extraterritoriality of the conduct in question and 

because the investigation itself implicated national security); Padilla v. Yoo, 678 F.3d 748 

(9th Cir. 2012) (dismissing, based on qualified immunity, Bivens action brought by former “enemy combatant” detainee against former lawyer in White House Office of the 

Legal Counsel who allegedly authorized and furthered policies leading to alleged abuse).

See also Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012) (dismissing case in which 

special factors (separation of powers in matters involving the U.S. military) weighed 

against providing a Bivens remedy and habeas corpus was available as an alternative 

ground for the relief that plaintiff sought).

305. See, e.g., Romero v. Drummond Co., 552 F.3d 1303, 1315–16 (11th Cir. 2008)

(recognizing aiding and abetting liability under the TVPA); Hilao v. Estate of Marcos, 103 

F.3d 767, 777, 779 (9th Cir. 1994) (allowing aiding and abetting liability and command 

responsibility for conduct of public officials under the TVPA).

306. See, e.g., Weisskopf v. United Jewish Appeal-Fed’n of Jewish Philanthropies of 

N.Y., Inc., 889 F. Supp. 2d 912, 924–25 (S.D. Tex. 2012) (finding that the “statute does not 

permit liability for aiding and abetting a primary violator”); Mastafa v. Chevron Corp., 

759 F. Supp. 2d 297, 300 (S.D.N.Y. 2010) (dismissing TVPA claims because, among other 

things, the “plain language” of the statute “does not permit aiding-and-abetting liability 

. . . . [and] does not extend liability to parties who provide aid to individuals who commit 

acts of torture”).
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2. Exclusivity of Remedy

It is an open question whether alien plaintiffs can plead both ATS and 

TVPA violations in the same case or whether the TVPA precludes other 

avenues of relief for torture and extrajudicial killings.307 The Seventh Circuit has ruled that alien plaintiffs alleging torture and extrajudicial killing 

can only raise claims that could be brought by American citizens under 

the TVPA. In Enaharo v. Abubakar, it held that the TVPA “occupied the 

field” as an expression of congressional intent for the TVPA to provide 

the exclusive remedy for claims involving torture and extrajudicial 

killing.308

Most other courts have taken the opposite view. In Kadic v. Karadžić, 

the Second Circuit had previously ruled that plaintiffs could bring torture 

and extrajudicial killing claims under either the ATS or the TVPA.

309 The 

Eleventh Circuit also has held that the TVPA did not displace the ATS.310

A number of district courts have followed suit.

311

3. Exhaustion of Remedies

The TVPA requires claimants to exhaust local remedies—in the place 

where the violations in question occurred—unless such efforts would be 

 

307. Only certain subsets of claims brought by foreign plaintiffs could be supplanted 

under this theory, in that the ATS (subject to Sosa and Kiobel) (a) only applies to aliens, 

(b) is not limited to violations by individuals acting under the color of foreign law, and 

(c) covers a broader set of international wrongs, whereas the TVPA is limited solely to 

torture and extrajudicial killings. 

308. Enahoro v. Abubakar, 408 F.3d 877, 884–85 (7th Cir. 2005) (subsequently vacated on other grounds).

309. Kadic v. Karadžić, 70 F.3d 232, 241 (2d Cir. 1995) (noting that one benefit of 

proceeding under the ATS was avoidance of the TVPA’s requirement of exhausting local 

remedies). See also Wiwa v. Royal Dutch Petroleum, No. 96-CV-8386, 2002 WL 319887 

(S.D.N.Y. Feb. 28, 2002) (“This Court reads Kadic I to hold that the TVPA did not 

preempt torture and summary execution claims under the ATCA.”); Doe v. Saravia, 348 

F. Supp. 2d 1112, 1145 (E.D. Cal. 2004) (citing Kadic, 70 F.3d at 241) (“The scope of the 

Alien Tort Act remains undiminished by the enactment of the Torture Victim Act.”).

310. Aldana v. Del Monte Fresh Produce, NA, Inc., 416 F.3d 1242, 1251 (11th Cir. 

2005) (holding that plaintiffs may bring distinct claims under each statute).

311. See, e.g., Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080, 1085–86 (N.D. Cal. 

2008), aff’d, 621 F.3d 1116 (9th Cir. 2010) (TVPA and ATS claims mutually coexist for

torture and related offenses); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 

1164, 1178 n.13 (C.D. Cal. 2005) (same).
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58

patently futile or ineffective.312 Plaintiffs who would suffer retaliation for 

bringing local claims are exempt from the exhaustion requirement. A 

genuine threat of violence, for example, “easily meets the futility standard.”313 Also exempt are plaintiffs who can demonstrate the patent insufficiency of local remedies. The Seventh Circuit held this requirement 

fulfilled upon proof that “the legal remedies offered by the Nigerian 

courts were indeed ineffective, unobtainable, unduly prolonged, inadequate or obviously futile under any applicable exhaustion provisions.”314

The mere receipt of some compensation for human rights injuries 

does not appear to automatically preclude additional remedies under the 

TVPA. The Eleventh Circuit recently considered this issue as a case of 

first impression in Mamani v. Berzain.

315 In Mamani, the court held that 

plaintiffs who received payments from a Bolivian government compensation fund following the ouster of a predecessor regime that committed 

torture and related violations had satisfied the TVPA’s requirement to 

exhaust local remedies before bringing suit. In denying a motion to dismiss, the court held that such “successful exhaustion of foreign remedies” 

did not preclude subsequent TVPA claims in the United States based 

upon the statute’s exhaustion requirements.316

Exhaustion is a question of law for the court,

317 but there is disagreement over which party bears the burden of establishing it. Some courts 

have held that proof of exhaustion (or futility) is part of the plaintiff’s 

case in chief and must be pleaded alongside other elements of a TVPA 

claim.318 Others have held exhaustion to be an affirmative defense upon 

 

312. See 28 U.S.C. § 1350 (2012) (note).

313. See Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 25 (D.D.C. 2005).

314. Enahoro v. Abubakar, 408 F.3d 877, 892 (7th Cir. 2005).

315. Mamani v. Berzain, 825 F.3d 1304 (11th Cir. 2016).

316. Id. at 1311 (holding, based on a plain reading of the statute, that the TVPA’s 

“exhaustion requirement does not bar a TVPA suit by a claimant who has successfully exhausted her remedies in the foreign state.” The court did not consider questions of issue 

or claim preclusion or res judicata because those issues were not raised on appeal. Id.

317. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1994) (holding 

that jury instructions on exhaustion were not required).

318. See, e.g., Enaharo, 408 F.3d at 884–86 (subsequently vacated on other grounds) 

(remanding for determinations as to whether torture victims should be allowed to amend 

pleadings to assert exhaustion under the TVPA and if so, whether they had in fact exhausted available remedies).
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59

which defendants bear a “substantial” burden of proof.319 Courts considering the issue have relied upon such materials as motion papers and

briefs, statements of interest from the State Department, affidavits, and 

NGO Reports.320

There also is a lack of agreement among federal courts over whether 

the TVPA’s exhaustion requirement extends to the ATS as well. The Supreme Court recognized in Sosa that exhaustion might apply in an “appropriate case” under the ATS, but did not elaborate on the applicable 

standards and procedures.321

Courts have taken different positions on the proper influence of the 

TVPA in ATS cases. In Kadic v. Karadžić, the Second Circuit declined to 

require exhaustion on ATS claims of torture and summary execution, 

even while simultaneously finding TVPA claims subject to exhaustion 

based on the identical underlying conduct.

322 The Seventh Circuit323 and 

 

319. See, e.g., Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005). See also In re Xe 

Services Alien Tort Litig., 665 F. Supp. 2d 569, 594 n.32 (E.D. Va. 2009) (defendants could 

not establish affirmative defense when no remedy was available in Iraq, such that question of exhaustion was “essentially moot and need not be answered”); Doe v. Constant, 

354 F. App’x 543 (2d Cir. 2009) (exhaustion under TVPA is affirmative defense); Bowoto 

v. Chevron Corp., 557 F. Supp. 2d 1080, 1096 (N.D. Cal. 2008) (where defendants failed

to establish the availability of remedies in Nigeria, exhaustion was not required); Collett v. 

Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 230, 242–43 (D.D.C. 2005)

(plaintiff was not obligated to plead exhaustion or futility until defendant established that 

effective remedies existed in the local forum).

320. See, e.g., Jean v. Dorelien, 431 F.3d 776, 782–83 (11th Cir. 2005) (considering 

party briefs, affidavits, and a report from Amnesty International); Doe v. Exxon Mobil, 

393 F. Supp. 2d 20, 25 (D.D.C. 2005) (assessing motion papers and briefs, as well as statement of interest from the State Department and an affidavit from an Indonesian Supreme 

Court Justice).

321. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004). See Presbyterian 

Church of Sudan v. Talisman Energy, Inc., No. 01-CV-9882, 2005 WL 2082846, at *7 n.10 

(S.D.N.Y. 2005) (describing Sosa’s “discussion [of exhaustion as] . . . too truncated to 

provide guidance here”).

322. Kadic v. Karadžić, 70 F.3d 232, 241–44 (2d Cir. 1995).

323. Enahoro v. Abubakar, 408 F.3d 877, 889 (7th Cir. 2005), cert. denied, 546 U.S. 

1175 (2006) (mem.). But see Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 674–77 (7th 

Cir. 2012) (holding, in a case involving claims under customary international law brought 

pursuant to an exception to the FSIA statute, that as a matter of both federal and international law, plaintiffs were required to either pursue claims in foreign courts first or provide a compelling reason for their failure to do so).
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Eleventh Circuit324 also have determined that the TVPA’s exhaustion requirement does not apply to ATS claims, as have a number of district 

courts.325

Because Sosa does not mandate exhaustion,

326 several courts have 

suggested that exhaustion is better understood as a discretionary consideration for courts hearing ATS claims. The Seventh Circuit has suggested 

that exhaustion may constitute a principle of international law incorporated into the ATS under Sosa.

327 The most extensive analysis of the issue 

to date appears in a series of opinions in Sarei v. Rio Tinto, although that

case subsequently was dismissed on jurisdictional grounds following the 

Supreme Court’s decision in Kiobel.

328

In Sarei, the Ninth Circuit interpreted Sosa’s reference to exhaustion 

to mean that the Supreme Court considered exhaustion to be a “prudential ‘principle’ among others that courts should consider beyond the initial task of determining whether the alleged violations of the ATS satisfy 

the ‘requirement of a clear definition.’”329 The court held that unlike statutory exhaustion, “prudential exhaustion is not a prerequisite to the exercise of jurisdiction, but rather is ‘one among related doctrines—

 

324. Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005) (citing Kadic v. Karadžić, 70 

F.3d 232 (2d Cir. 1995)).

325. See, e.g., Abiola v. Abubakar, 267 F. Supp. 2d 907, 910 (N.D. Ill. 2003); Jama v. 

INS, 22 F. Supp. 2d 353, 364 (D.N.J. 1998) (“There is nothing in the ATCA which limits 

its application to situations where there is no relief available under domestic law.”).

326. See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1178 n.13 

(C.D. Cal. 2005) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004)) (ATS 

claims need not “be modeled after the TVPA to include an administrative exhaustion 

requirement.”), remanded, 564 F.3d 1190 (9th Cir. 2009) (remanding so that district court 

could consider prudential exhaustion issues in light of the Ninth Circuit’s opinion in 

Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008) (en banc)).

327. See, e.g., Enahoro, 408 F.3d at 886 (“It may be that a requirement for exhaustion 

is itself a basic principle of international law.”).

328. Sarei v. Rio Tinto, PLC, 722 F.3d 1109, 1110 (9th Cir. 2013) (dismissing on remand from the Supreme Court).

329. Sarei v. Rio Tinto, 550 F.3d 822, 827 (9th Cir. 2008) (en banc) (citing Sosa, 542 

U.S. at 733 n.21). See also In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 281 

n.320 (S.D.N.Y. 2009) (noting that “Sosa . . . raised exhaustion as a possible prudential 

limitation”) (citations omitted).
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61

including abstention, finality, and ripeness—that govern the timing of 

federal-court decision making.’”330

Prudential exhaustion may apply to some claims in the case and not 

others. In Sarei, for example, the district court applied prudential exhaustion to claims with a weak nexus to the United States (e.g., cruel, inhuman, and degrading treatment and international environmental violations) but not claims involving matters of “universal concern” (war 

crimes, crimes against humanity, and racial discrimination).331 Its decision on prudential exhaustion was upheld by the Ninth Circuit.

332

These issues—and others—relating to exhaustion remain open questions for federal courts to resolve in future cases.

4. Corporate Liability

At one time the question of liability for artificial entities also had divided 

the federal courts in cases involving the TVPA. In contrast to the question of corporate liability under the ATS, this dispute did not center on 

whether international law recognized tort liability for corporations. Rather, the question turned on whether the direct reference to an “individual” perpetrator in the TVPA itself333 precluded its application to foreign 

states334 or corporations.335

The Supreme Court resolved this question in Mohamad v. Palestinian Authority, when it determined that the plain meaning of the term 

“individual” precluded application of the TVPA to artificial entities.336

The Court limited its holding to the TVPA alone, noting that the question of entity liability under the ATS “offers no comparative value here 

 

330. Sarei, 550 F.3d at 828 (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)).

331. Sarei v. Rio Tinto, PLC, 650 F. Supp. 2d 1004, 1032 (C.D. Cal. 2009).

332. Sarei v. Rio Tinto, PLC, 671 F.3d 736, 754–55 (9th Cir. 2011), cert. granted and 

judgment vacated, Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013).

333. TVPA, 28 U.S.C. § 1350(2)(a) (note) (2012).

334. See, e.g., Hurst v. Socialist People’s Libyan Arab Jamahiriya, 474 F. Supp. 2d 19, 

30 n.14 (D.D.C. 2007) (holding that the statute’s use of the term “individual” meant that 

the TVPA did not apply to states).

335. Compare Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009)

(holding that both TVPA and ATS applied to corporate defendants), with Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1026 (W.D. Wash. 2005) (holding that corporations 

could be neither victims nor perpetrators under the TVPA).

336. Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710–11 (2012).
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regardless of whether corporate entities can be held liable in a federal 

common-law action brought under that statute.”337

5. Relation to Immigration Law

One final TVPA issue is its relation to appellate review of immigration 

cases. Although this guide does not cover immigration and asylum 

cases,

338 federal judges inevitably must contend with allegations of torture, cruel and inhumane treatment, and persecution in immigration 

cases in which the court is asked to review the denial of asylum, withholding of removal, and relief under the Convention Against Torture 

(CAT).

These claims may arise from similar underlying facts, but the 

grounds for relief and the available remedies are different. While an asylum recipient may stay in the United States and apply for permanent 

resident status after one year, withholding of removal merely prohibits 

the United States from returning an individual to the country of persecution and does not provide a path to regularized status in the United 

States.339 Furthermore, under the CAT, the United States may not return 

an individual to a country where he or she is likely to be tortured.340

Claims for denial of asylum, withholding of removal, and CAT relief 

may all be present in an immigration appeal.341 Although the issues raised 

 

337. Id. at 1709.

338. For guidance on this topic, see Michael A. Scaperlanda, Immigration Law: A 

Primer (Federal Judicial Center 2009).

339. Id. at 110.

340. Id. at 111.

341. See, e.g., Mushayahama v. Holder, 469 F. App’x 443 (6th Cir. 2012) (unpublished opinion) (finding asylum claim time barred and denying withholding of removal because petitioner failed to establish past persecution based on political opinion or 

likely future persecution based on social group membership, but remanding CAT claims 

based on the BIA’s failure to consider all evidence of potential future torture in Zimbabwe). See also Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2012) (mistreatment by members of drug cartel beyond Mexican government’s control could establish past persecution, and acquiescence of local officials in torture established required parameters of relief 

under the CAT); Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2011) (denying persecution 

claim on the grounds that petitioners who refused to join Honduran youth gangs were 

not a particular social group, but remanding the case for determination of whether police 

refusal to help aliens constituted acquiescence of a public official in torture for purposes 

of CAT claim).
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63

in immigration cases are analytically distinct, the underlying facts upon 

which asylum and related claims are based also may support claims under one or more of the statutory grounds discussed in this guide.342

D. Additional Statutory Remedies

There are other federal statutes that potentially relate to human rights 

claims. These include the following:

• Trafficking Victims Protection Reauthorization Act, 18 U.S.C. 

§ 1595 (TVPRA);

• Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 

(RFRA); 

• Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333 (ATA);

• State Sponsors of Terrorism Exception to the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1605(a)(7) (FSIA); and

• Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 

§§ 1961, 1962 (RICO).

Claims under these provisions may be raised in tandem with claims

under the ATS or the TVPA. But RICO, RFRA, the TVPRA, and antiterrorism laws have a much broader application that extends far beyond 

the human rights focus of this guide. Although federal courts should be 

aware that human rights claims may arise under these provisions, those 

claims form a much smaller part of the overall picture of federal human 

rights litigation. Consequently, they are discussed in less detail here. 

1. Trafficking Victims Protection Reauthorization Act

The William Wilberforce Trafficking Victims Protection Reauthorization 

Act of 2008 (TVPRA) prohibits involuntary servitude, forced labor, and 

trafficking individuals to facilitate these crimes or sexual offenses against 

the person.343 It also provides victims with the right to recover damages 

and attorneys’ fees through a civil action in federal court.

344 Claims may 

be asserted against perpetrators and anyone who “knowingly benefits,

financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act 

 

342. Parallel proceedings are addressed in Part III.F, infra.

343. See 18 U.S.C. §§ 1589–1591 (criminal offenses).

344. See 18 U.S.C. § 1595(a) (civil action).
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in violation of [the TVPRA].”345 TVPRA claims for human trafficking are 

often paired with other federal causes of action, such as RICO and ATS

cases.346

A federal court may take jurisdiction over any domestic violation of 

the TVPRA and over conduct occurring abroad if the alleged offender is 

a U.S. national or resident or otherwise is found in the United States.347

Extraterritorial application of the TVPRA was explicitly authorized by 

Congress in the statute’s December 2008 reauthorization. The reauthorization legislatively supersedes cases such as Roe v. Bridgestone Corp., 

which had held that the prior version of the TVPRA provided no remedy 

for violations outside the United States.348 A more recent decision, Adhikari v. Daoud & Partners, confirmed the TVPRA’s retroactive application to a case involving overseas human trafficking brought by Nepalese 

laborers against a U.S.-based contracting company.349

2. Religious Freedom Restoration Act

The Religious Freedom Restoration Act (RFRA)350 has been raised in human rights cases involving religious practices. RFRA provides that the 

“[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except 

to further a compelling governmental interest and only by using the least 

restrictive means available to accomplish that goal. RFRA applies to the 

U.S. federal government only, not to state or local governments.

351 It pro-

 

345. 18 U.S.C. § 1595(a).

346. See, e.g., Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674, 688–90 (S.D. Tex. 

2009) (declining to dismiss claims that human trafficking and other mistreatment by the 

Jordanian affiliate of a military contractor and its subsidiaries violated the TVPRA as well 

as the ATS and civil RICO statutes).

347. 18 U.S.C. § 1596(a).

348. Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 999–1003 (S.D. Ind. 2007).

349. Adhikari, 697 F. Supp. 2d at 683–84 (confirming that extraterritorial application 

of the TVPRA, provided for in the 2008 amendments to prior version of federal trafficking statute, applied retroactively, such that federal civil jurisdiction over such conduct 

existed even if it took place before the amendments were enacted).

350. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a) (2012) [hereinafter 

RFRA].

351. See RFRA, 42 U.S.C. § 2000bb-2(1) (defining “government” as the United 

States), and § 2000bb-3(a) (applying RFRA to “[f]ederal law”).
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65

vides a civil remedy for violations and allows federal courts to enter “appropriate relief” against infringing governmental entities.352

Although RFRA is not limited to foreign plaintiffs or the international human rights context, RFRA violations have been raised in tandem 

with other human rights claims. In Jama v. INS,

353 alien plaintiffs brought 

ATS claims against federal border guards for torture, beatings, and harassment that occurred while they were detained on immigration charges.

The plaintiffs also alleged that detention facility personnel impermissibly 

burdened their free exercise of religion. The court allowed the ATS

claims based on the abysmal living conditions at the facility to proceed, 

together with RFRA claims grounded in detention policies and other 

conduct that interfered with the plaintiffs’ religious observances.

354

Other factors may limit RFRA’s application, however. One such factor is the plaintiff’s nationality. In Rasul v. Myers, detainees at Guantanamo Bay, Cuba, alleged, inter alia, that the federal government substantially burdened the exercise of Muslim religious beliefs and engaged 

in systematic efforts to disrupt religious observances.355 In the second 

Rasul opinion issued by the D.C. Circuit (Rasul II), the majority noted 

that “Congress legislated [RFRA] against the background of precedent 

establishing that nonresident aliens were not among the ‘person[s]’ protected by the Fifth Amendment . . . and were not among ‘the people’

protected by the Fourth Amendment[.]”356 It then held that “the term 

‘person’ as used in RFRA should be read consistently with similar language in constitutional provisions.”357

On this basis, the Rasul II majority concluded that the Guantanamo 

detainees were not “persons” entitled to invoke RFRA’s protections 

 

352. RFRA legislatively overrules Employment Division v. Smith, 494 U.S. 872 (1990)

(neutral, generally applicable laws that incidentally restrict religious freedom must satisfy 

only rational basis review), and restores the compelling interest test of Sherbert v. Verner, 

374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972)).

353. Jama v. INS, 343 F. Supp. 2d 338 (D.N.J. 2004).

354. Id. at 366.

355. Rasul v. Myers, 563 F.3d 527, 533 (D.C. Cir. 2009) [hereinafter Rasul II].

356. Id. at 533 (citing Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (Fifth 

Amendment), and United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (Fourth 

Amendment)).

357. Id. at 532–33 (internal quotations and citations omitted).
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against the federal government and dismissed the claims.

358 In a separate 

concurring opinion, Judge Brown agreed with the dismissal of RFRA

claims on the grounds of qualified immunity but disputed the majority’s 

reasoning on whether the detainees were “persons” entitled to assert 

claims under RFRA.359

Plaintiffs also face immunity obstacles to RFRA claims, at least when 

the conduct in question occurs outside of the United States and is connected to military activities. In early 2012, RFRA claims against government and military officials alleging detention abuses overseas were dismissed by the Fourth and Ninth Circuits on qualified immunity 

grounds.360 Qualified immunity also was a separate ground for dismissing 

the plaintiff Guantanamo Bay detainees’ RFRA claims in Rasul II.

361

3. Anti-Terrorism Act

There are specific federal statutes addressing acts of terrorism. The AntiTerrorism Act (ATA) allows a U.S. national to seek treble damages for 

injuries to “his or her person, property or business by reason of an act of 

international terrorism.”362 ATA cases have been brought against nonstate entities,363 individuals,364 and even commercial banks365 in connec-

 

358. Id. at 533. In Rasul II, the D.C. Circuit reinstated a prior judgment, Rasul v. 

Myers, 512 F.3d 644, 671–72 (2008) (Rasul I), that had been vacated by the Supreme 

Court for reconsideration in light of Boumedine v. Bush, 553 U.S. 723 (2008). See Rasul v. 

Myers, 555 U.S. 1083 (2008) (vacating prior decision), and Rasul II, 563 F.3d at 533 (reinstating prior decision).

359. See generally Rasul II, 563 F.3d at 533 (Brown, J., concurring) (“Unlike the majority, I believe Congress ‘did not specifically intend to vest the term “persons” with a 

definition . . . at odds with its plain meaning.’ The majority does not point to a single 

statute defining ‘person’ so narrowly as to exclude nonresident aliens from its ambit, and 

nothing in RFRA’s history suggests Congress focused on the term’s scope here.”) (internal 

citations and quotations omitted).

360. See Lebron v. Rumsfeld, 670 F.3d 540, 560 (4th Cir. 2012) (dismissing claims on 

the grounds that RFRA’s application “to the military detention setting” was not clearly 

established at the time of the alleged violations). See also Padilla v. Yoo, 678 F.3d 748 (9th 

Cir. 2012) (same).

361. See Rasul II, 563 F.3d at 533, 536 n.6.

362. Anti-Terrorism Act, 18 U.S.C. § 2333 (2012) [hereinafter ATA].

363. See, e.g., Estate of Klieman v. Palestinian Auth., 424 F. Supp. 2d 153 (D.D.C. 

2006).

364. See, e.g., Morris v. Khadr, 415 F. Supp. 2d 1323 (D. Utah 2006).
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67

tion with acts of terrorism overseas. ATA claims are often asserted with 

claims under other human rights statutes, including the ATS, the TVPA, 

and RICO.366

Standing under the ATA is limited to individuals injured in terrorist 

attacks or their estates, survivors, or heirs.367 Some courts have held that 

available damages include compensation for related emotional injuries as 

well. In Biton v. Palestinian Interim Self-Government Authority, the court 

held that allegations of “emotional distress, a loss of consortium, and a 

loss of solatium” qualified as injuries to the plaintiff’s “person, property, 

or business” and that the bombing in question was properly alleged to 

have caused those injuries.

368

In any case, the burden rests with the plaintiffs to establish a causal 

link between the defendant’s conduct (such as transferring funds or 

providing material support) and the terrorist acts in question.369 For their 

ATA claims to succeed, plaintiffs must prove both proximate cause and 

material contribution to the terrorist acts with awareness of or indifference to the terrorist’s aims.370

The ATA specifically excludes claims against the U.S. government 

and government officials, however, as well as conduct involving acts of 

 

365. See, e.g., Weiss v. Nat’l Westminster Bank PLC, 453 F. Supp. 2d 609 (E.D.N.Y. 

2006) (declining to dismiss ATA claims against British bank for allegedly transmitting 

and collecting funds used in terrorist activities).

366. See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 740 F. Supp. 2d 494 (S.D.N.Y. 

2010) (multidistrict litigation arising out of 9/11 terrorist attacks involving claims under 

ATA, ATS, TVPA, and RICO); Abecassis v. Wyatt, 704 F. Supp. 2d 623 (S.D. Tex. 2010) 

(claims under ATS, ATA, and TVPA for allegedly financing terrorist activities).

367. See Litle v. Arab Bank, PLC, 507 F. Supp. 2d 267 (E.D.N.Y. 2007) (denying

standing to plaintiffs who claimed emotional injuries as friends of the victim).

368. Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172, 182 (D.D.C. 

2004) (finding it “unlikely that Congress would have considered damage to a car to 

constitute an ‘injury’ for purposes of the ATA but not emotional trauma and a loss of 

companionship from the death of a spouse occurring in the same attack. Which would 

you rather lose, a car or a spouse?”).

369. See generally Rothstein v. UBS AG, 647 F. Supp. 2d 292 (S.D.N.Y. 2009) (claims 

against banks for aiding and abetting terrorism).

370. Abecassis v. Wyatt, 704 F. Supp. 2d 623, 637 (S.D. Tex. 2010) (dismissing ATS, 

ATA, and TVPA claims against oil companies for allegedly financing terrorism by illegally purchasing oil from Iraq in violation of UN Oil-for-Food Program).
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war.371 Its four-year limitations period also is much shorter than the tenyear limitations found in other human rights statutes, although this period is tolled during a defendant’s absence from the United States.372

4. FSIA State Sponsors of Terrorism Exception

The “state sponsors of terrorism” exception to the Foreign Sovereign 

Immunities Act (FSIA)

373 allows direct claims against designated foreign 

“state sponsors of terrorism”374 for acts of torture, extrajudicial killing, 

hostage taking, or aircraft sabotage, or the provision of material support 

in connection with such acts. At the time of this writing, only three

countries are designated under this provision: Iran, Sudan, and Syria.375

The previously designated states of Iraq, North Korea, Libya, and Cuba

have all been removed from the list,

376 thereby eliminating subject-matter

jurisdiction over claims against these countries.377

 

371. ATA, 18 U.S.C. §§ 2336–2337 (2012).

372. Id. § 2335. Limitations periods for all human rights causes of action are detailed 

in Part III.G, infra.

373. Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A (2012) [hereinafter 

FSIA].

374. The U.S. State Department makes this designation pursuant to three laws: article 6(j) of the Export Administration Act of 1979, 50 U.S.C. app. 2405(j) (2012); section 

40 of the Arms Export Control Act, 22 U.S.C. § 2780 (2012); and section 620A of the Foreign Assistance Act of 1961, 22 U.S.C. § 2371(a) (2012). See Owens v. Republic of Sudan, 

374 F. Supp. 2d 1, 18–19 (D.D.C. 2005).

375. See U.S. State Department—State Sponsors of Terrorism Designations, http://

www.state.gov/j/ct/list/c14151.htm (last visited Aug. 10, 2016).

376. See Office of Foreign Assets Control, Dep’t of the Treasury, Prohibited Financial Transactions, 31 C.F.R. § 596.201 (1997) (prior designation including Iraq, North 

Korea, Libya, and Cuba).

377. See, e.g., Libyan Claims Resolution Act (LCRA), Pub. L. No. 110–301, Aug. 4, 

2008, 122 Stat. 2999, 28 U.S.C.A. § 1605A (note), and Executive Order No. 13477, Oct. 31, 

2008, Settlement of Claims Against Libya, 73 Fed. Reg. 65965 (terminating all pending 

cases and precluding all future claims in United States or Libyan courts based on terrorist 

acts that occurred prior to June 30, 2006); Certain Underwriters at Lloyds London v. 

Great Socialist People’s Libyan Arab Jamahiriya, 677 F. Supp. 2d 270, 275 (D.D.C. 2010)

(holding that the LCRA and executive settlement agreement eliminated the FSIA terrorism exception for Libya, thereby depriving the federal courts of subject-matter jurisdiction over reimbursement action by insurance companies for claims paid in connection 

with a terrorist airline hijacking).
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69

Prior versions of the FSIA exception did not give rise to a federal 

cause of action.

378 They simply removed an obstacle to suit and allowed 

substantive causes of action that existed elsewhere in federal, state, or 

international law to be asserted against the designated states to the same 

extent as private individuals.379 In contrast, the current statute creates a 

cause of action against both the foreign state and governmental agents. It 

allows victims to assert wrongful death and other tort claims directly 

against foreign states—causes of action from which they normally would 

be immune under U.S. law.380 The statute also includes provisions designed to make judgments easier to collect.381

Unlike the ATS, which allows suits only by non-citizens, under the 

FSIA state sponsors of terrorism exception, the claimant must be a U.S.

national at the time of the injury.382 A ten-year statute of limitations applies, which is tolled during any period of time in which the defendant 

was immune from suit.383

5. Racketeer Influenced and Corrupt Organizations Act 

The Racketeer Influenced and Corrupt Organizations Act (RICO), which 

was enacted to counter organized criminal enterprises, has been asserted 

as a means of recovery in some human rights cases. RICO prohibits racketeering activity in interstate commerce as well as conspiracy and the use 

 

378. See 28 U.S.C. § 1606. This general rule was subject to some exceptions, such as 

the so-called Flatow Amendment, Pub. L. No. 104-208, div. A, tit. I § 101(c), 28 U.S.C. 

§ 1605 (note) (2012). Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 25 (D.D.C. 1997)

(cause of action for American student killed by suicide bomber in Israel).

379. See, e.g., Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 68 (D.D.C. 2006)

(legislatively superseded, see Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14, 17–18 

(D.D.C. 2011)). See also Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261 

(D.D.C. 2005) (recognizing causes of action for battery, intentional infliction of emotional distress, and wrongful death in connection with more than 80 victims and families 

of victims of the 1983 bombing of the United States Embassy in Beirut, Lebanon).

380. For additional details, see David P. Stewart, The Foreign Sovereign Immunities 

Act: A Guide for Judges (Addendum) (Federal Judicial Center 2013) (discussing statesponsored terrorism exception).

381. FSIA, 28 U.S.C. § 1605A.

382. Id.

383. Id.
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of income derived from such conduct.384 It provides both criminal penalties and civil remedies, including treble damages and attorneys’ fees,385

subject to a four-year limitations period.386

Civil recovery under RICO is limited to damages from injury to business interests or property. Damages from personal injuries, such as murder, kidnapping, or emotional distress, are not compensable.387 RICO

claims in human rights cases have been dismissed on this basis. In Ibrahim v. Titan Corp.,388 for example, the court held that detainees in an 

Iraqi prison lacked standing under RICO because the only allegations 

against Titan’s contractors were personal injuries (alleged acts of torture), rather than injuries to business or property.

In contrast, the Nigerian plaintiffs in Wiwa v. Royal Dutch Petroleum 

Co.

389 were allowed to proceed on RICO claims on the grounds that summary executions, crimes against humanity, torture, and other serious 

human rights violations also caused property damage and business harm.

One Wiwa plaintiff alleged that he “was forced to flee Nigeria and leave 

his medical practice because he feared arbitrary arrest, torture and death 

as a consequence of defendants’ racketeering activities.”390 Another 

claimed a loss of crops and future farming income as a result of being 

beaten and shot by the defendants, which caused physical injuries that 

prevented her from operating her farm. The court found that both plaintiffs had pled sufficient pecuniary injury from alleged racketeering activities to survive the defendants’ motion to dismiss these claims.391

Human rights plaintiffs must establish a sufficient connection between the alleged RICO activity and the human rights violations in ques-

 

384. Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (2012) 

[hereinafter RICO].

385. See RICO, 18 U.S.C. § 1964(c) (“Any person injured in his business or property 

by reason of a violation of . . . [18 U.S.C. § 1962] may sue therefor in any appropriate 

United States district court and shall recover threefold the damages he sustains and the 

cost of the suit, including a reasonable attorney’s fee . . . .”).

386. See Agency Holding v. Malley-Duff Assocs., Inc., 483 U.S. 143 (1987).

387. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

388. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005).

389. Wiwa v. Royal Dutch Petroleum Co., No. 96-CV-8386, 2002 WL 319887, at *26 

(S.D.N.Y. Feb. 28, 2002).

390. Id.

391. Id.
II. Federal Law—Civil Remedies for International Human Rights Violations

71

tion. Such RICO claims are subject, however, to limitations on extraterritorial application under the broader principles delineated by the Supreme 

Court in Morrison and Kiobel. In RJR Nabisco v. European Community, 

the Supreme Court held unanimously that RICO was an example of “the 

rare statute that clearly evidences extraterritorial effect despite lacking an 

express statement of extraterritoriality.”392 Not all extraterritorial conduct 

is covered, however—the question turns on whether the underlying 

RICO predicates themselves have extraterritorial effect.393

There was less agreement among the justices, however, about the 

extraterritorial application of RICO’s private right of action. In a ruling 

that may have a significant impact on human rights plaintiffs, the Court 

split 4–3 on whether RICO’s private right of action applied to injuries

that occurred overseas. Focusing primarily on concerns about “international friction” caused by redressing foreign injuries in U.S. courts, the 

majority determined that there was insufficient evidence of congressional 

intent to create a remedy for overseas conduct,394 such that only domestic 

injuries were covered.395 The dissent disputed this conclusion, arguing 

that RICO’s private remedy derived directly from the statutory provision 

that the Court already had determined could apply extraterritorially.396 In 

the dissent’s view, prior RICO precedent required “linking, not separating, prohibited activities and authorized remedies” under RICO, including its private right of action.397

Thus, under RJR Nabisco, federal courts must determine whether 

civil RICO is even available to human rights plaintiffs as a remedy based 

on where the injuries occurred. When RICO does apply, it requires proof 

of racketeering (as defined in the statute) that proximately caused harm 

 

392. RJR Nabisco v. European Community, 136 S. Ct. 2090, 2103 (2016).

393. Id. at 2102.

394. Id. at 2106–11.

395. Id. at 2111. (holding that “[s]ection 1964(c) requires a civil RICO plaintiff to 

allege and prove a domestic injury to business or property and does not allow recovery 

for foreign injuries”).

396. Id. at 2113. (“How can § 1964(c) exclude [such overseas claims] when, by its 

express terms, § 1964(c) is triggered by ‘a violation of section 1962’?”) (Ginsburg, J., dissenting) (internal citations omitted).

397. Id.
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to the plaintiff’s business interests or property,398 operating as a “but-for”

cause of the injury.399 For example, a pre-RJR Nabisco case, Corrie v. 

Caterpillar, Inc.,400 involved deaths and the destruction of homes in the 

Gaza Strip by Israeli Defense Forces using bulldozers manufactured by 

Caterpillar. The court dismissed the Palestinian plaintiffs’ civil RICO

claims on multiple grounds:

1. The relationship between Caterpillar and the State of Israel was 

too attenuated to constitute an “enterprise.”

2. Caterpillar did not engage in “racketeering activities” because the 

sale of bulldozers was not alleged to be punishable under state 

law.

3. Caterpillar’s actions were not the proximate cause of the plaintiffs’

injury.

4. The plaintiffs failed to allege “some factual basis for the finding of 

a conscious agreement among defendants” sufficient to state a 

claim for conspiracy.401

RICO allegations are independent of other human rights claims but

may arise in tandem with litigation under the ATS. One ATS/RICO case, 

Licea v. Curacao Drydock Co.,402 involved claims that a dry-dock company conspired with the Cuban government to force Cuban nationals 

into labor camps in violation of international law prohibiting forced labor and human trafficking. The court awarded the plaintiffs $80 million 

in compensatory and punitive damages under the ATS but also held that 

RICO was a separate ground of recovery that supported both jurisdiction 

and damages.403

 

398. Civil RICO plaintiffs must establish “(1) that the defendant (2) through the 

commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ 

(5) directly or indirectly invests in, maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983).

399. See, e.g., Lopez v. Council on American-Islamic Relations Action Network, Inc., 

657 F. Supp. 2d 104 (D.D.C. 2009).

400. Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005).

401. Id. at 1027–30.

402. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008).

403. Id. at 1359.
II. Federal Law—Civil Remedies for International Human Rights Violations

73

RICO claims for human trafficking have also been paired with claims 

under the TVPRA. In Adhikari v. Daoud & Partners, for example, the 

court found that allegations of human trafficking and mistreatment by 

the Jordanian affiliate of a military contractor and its subsidiaries potentially violated RICO, the ATS, and the TVPRA.404

 

404. Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674, 688–90 (S.D. Tex. 2009)

(allowing the plaintiffs to proceed on RICO, ATS, and TVPRA claims).

75

III. Procedural Issues

The ordinary procedural requirements of civil litigation in federal court 

also apply to human rights cases. Plaintiffs in human rights cases must 

demonstrate that each defendant has been properly served with legal 

process. They also must establish that the alleged perpetrators are subject 

to personal jurisdiction and that venue is proper. Defendants may seek 

dismissal under the doctrine of forum non conveniens and also may challenge standing and whether the plaintiffs have actual rights to assert the 

claims in question. Further disputes may arise over the scope and timing 

of overseas discovery and whether claims have been brought in a timely 

manner.

While these procedural issues are of course separate legal questions, 

in practice they may be raised in tandem and often are predicated upon 

similar underlying facts. They and other related issues are discussed 

below.

A. Service of Process

The service of process requirements in human rights cases follow Rule 4 

of the Federal Rules of Civil Procedure. It is incumbent upon the plaintiff 

to properly serve the summons and complaint upon all defendants, 

whether they are present in the United States or located abroad.405

Service is most easily accomplished when a defendant is physically 

served while present within the United States. In many human rights 

cases, however, the defendant will not be available within the United 

States. This requires service of process in a foreign state—often the place 

in which the alleged human rights violations occurred. Service overseas

must be made pursuant to a treaty agreement between the United States 

and the foreign nation, if one exists.406 One such agreement is the multilateral Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”), which sets forth detailed means for the transnational 

 

405. See Fed. R. Civ. P. 4 and 4.1 (service of summons and complaint).

406. See Fed. R. Civ. P. 4(f)(1) (service abroad by “internationally agreed means”).
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service of legal process.407 The Hague Service Convention provides the 

exclusive means of service in countries that are parties to this treaty.

408

Under the Hague Service Convention, plaintiffs generally present 

service requests to a designated central authority in the foreign state, including the documents to be served, required translations, and a special 

transmittal document that comports with the model forms annexed to 

the convention. The application of the Hague Service Convention varies 

by country, however, such that otherwise-valid means of service may not 

be available for a particular overseas defendant. This can occur, for example, when the country in question objected to a particular mode of 

service by making a reservation when it ratified the Hague Service Convention itself.409

Where the Hague Service Convention applies, “the party seeking to 

apply the Convention bears the burden to show that the ‘particular facts, 

sovereign interests, and likelihood [that resorting to Hague procedures] 

will prove effective.’”410 That said, minor technical errors in transnational 

service will not invalidate service when a defendant receives actual notice.

Even in human rights cases, the service rules are “to be liberally construed, to further the purpose of finding personal jurisdiction in cases in 

which the party has received actual notice.”411

Questions of sovereign immunity, which are discussed in more detail 

below,412 may impact service of process as well. For example, when a dis-

 

407. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 

art. 1 (1969) (“The present Convention shall apply in all cases, in civil or commercial 

matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”).

408. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

409. See, e.g., Mones v. Commercial Bank of Kuwait, 502 F. Supp. 2d 363, 369–71 

(S.D.N.Y. 2007) (service by mail under the Hague Convention was ineffective where the 

Kuwaiti government repeatedly objected to its use). 

410. Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525, 529 (D.N.J. 

2009) (quoting In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 300 (3d 

Cir. 2004)).

411. See Doe v. Constant, 354 F. App’x 543, 546 (2d Cir. 2009) (because former Haitian military leader whose name was misspelled in the summons received actual notice of 

ATS and TVPA claims, and because any defects in the summons were purely clerical,

default judgment would not be vacated) (internal quotations omitted).

412. See infra Part IV.
III. Procedural Issues

77

pute involves a foreign government, agency, or instrumentality, the FSIA

specifies the exclusive methods by which process may be served.413 Immunity also can invalidate otherwise permissible modes of service. Diplomats, for example, have long been granted special protections and exemptions under international law.414 Diplomatic immunity protects

diplomats and their family members “from arrest, detention and, in general, civil process.”415 These diplomatic protections can invalidate service 

based upon immunity attaching to a person (e.g., ambassadors and government officials),416 to the participants in a “mission” or visiting delegation,417 or to a geographic location (e.g., the six-block area surrounding 

the United Nations headquarters building).418

The Second Circuit considered all three types of immunity in Kadic 

v. Karadžić. It determined that the Bosnian Serb leader attending meetings at the United Nations was not entitled to immunity from service of 

process as a head of state or as a U.N. mission delegate, even though he 

was in New York to discuss the armed conflict in the former Yugoslavia 

in the early 1990s. The court held that immunity did apply to the geographic area constituting the U.N. headquarters district, such that personal service upon the defendant within this zone was invalid. It determined, however, that service a second time outside of the immunity zone 

was valid, such that the defendant was required to defend claims of genocide and other human rights violations in federal court in New York.419

Where no international agreement applies, service may be made pursuant to the foreign country’s laws or through other means authorized by 

 

413. FSIA, 28 U.S.C. § 1608(a)(1)–(a)(4) (2012).

414. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 721–25 (2004) (discussing historic protections for diplomats); Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa. 

1784) (affirming criminal conviction under law of nations for assault on French 

ambassador).

415. Restatement (Third) of Foreign Relations Law § 464 (1987).

416. See, e.g., Tachiona v. United States, 386 F.3d 205, 221–24 (2d Cir. 2004) (service 

on foreign president and foreign minister violated diplomatic immunity and therefore 

was ineffective).

417. Restatement (Third) of Foreign Relations Law § 464 cmt. i (1987).

418. See, e.g., Kadic v. Karadžić, 70 F.3d 232, 247 (2d Cir. 1995).

419. Id. at 247–48.
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the court.

420 This includes service under state long-arm statutes. In Estate 

of Manook v. Research Triangle Institute,

421 for example, the defendant, a 

Singaporean corporation with a principal base of business in Dubai, 

sought to dismiss ATS and TVPA claims based on insufficient service of 

process. The defendant argued that service was defective because overnight packages containing the plaintiff’s Notice of Service were sent to 

the wrong address, were delivered by a non-neutral party, and did not 

constitute “mail” under the applicable rules.422 The court declined to even 

consider these issues because the defendant also had been properly 

served pursuant to Washington, D.C.’s long-arm statute.

423

If the circumstances require it, the court may authorize service in 

some other manner or modify otherwise-applicable service procedures.

In Kadic v. Karadžić, for example, the court modified in-hand service 

requirements to allow service by providing a copy of the summons and 

complaint to a member of the defendant’s State Department security detail, together with a court order directing the recipient to provide the 

summons to the defendant.

424 In litigation stemming from the bombing 

of the American embassy in Kenya, the court authorized service on 

Osama bin Laden and al-Qaeda by publication, because the addresses of 

bin Laden and his organization were neither known nor easily 

ascertainable.425

B. Personal Jurisdiction

Human rights plaintiffs must demonstrate that alleged perpetrators are 

subject to personal jurisdiction in the court before which their claims are 

pending.426 An American court may not adjudicate a defendant’s rights if 

 

420. See Fed. R. Civ. P. 4(f)(3) (allowing transnational service “by other means not 

prohibited by international agreement, as the court orders”).

421. Estate of Manook v. Research Triangle Inst., 693 F. Supp. 2d 4 (D.D.C. 2010).

422. See Fed. R. Civ. P. 4(f)(2)(C)(ii) (allowing service by use of “any form of mail 

that the clerk addresses and sends to the individual and that requires a signed receipt”).

423. Estate of Manook, 693 F. Supp. 2d at 11.

424. See Kadic, 70 F.3d at 246–47.

425. Mwani v. Bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005).

426. Kulko v. Superior Court, 436 U.S. 84, 91 (1978). See also Jet Wine & Spirits, Inc. 

v. Bacardi & Co., 298 F.3d 1, 6 (1st Cir. 2000) (plaintiff’s burden to establish personal 

jurisdiction in transnational litigation).
III. Procedural Issues

79

the court’s assertion of personal jurisdiction over that defendant would 

violate “traditional notions of fair play and substantial justice.”427 This 

requirement reflects the constitutional principle that due process under 

the Fourteenth Amendment requires a minimum baseline of volitional 

contact by the defendant with the forum in question.428 In the early stages 

of litigation, a human rights plaintiff need only establish a prima facie 

showing of such contacts in order to overcome a motion to dismiss.429

Discovery also may be phased to focus solely on these potentially dispositive issues at the outset of the case,

430 although considerations of cost, 

delay, and fairness also come into play, especially when overseas discovery is required.431

Personal jurisdiction turns principally on the nature and extent of 

the defendant’s contacts with the U.S. forum. In-hand service establishes 

valid personal jurisdiction over human rights defendants even when they 

have no other contacts with the United States and the injuries alleged in 

the case occurred overseas.432 When personal service is made on a defendant’s local agent, however, the plaintiff must establish that the agent was 

authorized to accept service of process on the defendant’s behalf.433

 

427. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (requiring sufficient 

“minimum contacts” with the forum “that the maintenance of the suit does not offend 

traditional notions of fair play and substantial justice” in violation of the U.S. Constitution). See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)

(reaffirming International Shoe).

428. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2850 

(2011).

429. See Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 99 (2d Cir. 2000).

430. See, e.g., Jet Wine & Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 6 (1st Cir. 2000)

(early discovery on personal jurisdiction); Butcher’s Union Local No. 498 v. SDC Inv., 

Inc., 788 F.2d 535, 540 (9th Cir. 1986) (holding that discovery on personal jurisdiction 

“should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary”) 

(internal quotations omitted).

431. Case and docket management are discussed in Part VII, infra.

432. See Burnham v. Superior Court of Cal., 495 U.S. 604, 609–16 (1990); Kadic v. 

Karadžić, 70 F.3d 232, 246–48 (2d Cir. 1995). See also Filartiga v. Pena-Irala, 630 F.2d 

876, 878–79 (2d Cir. 1980) (service on defendant living in New York at the time the lawsuit was filed).

433. See Estate of Klieman v. Palestinian Auth., 467 F. Supp. 2d 107, 114 (D.D.C. 

2006) (service of process on a researcher in the Palestine Liberation Organization’s Washington, D.C., offices was insufficient to establish personal jurisdiction over defendant 
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When personal service within the United States is not available, service may be made pursuant to state long-arm statutes. As in other types 

of cases, the burden rests with the plaintiff to establish that the defendant 

has continuous and systematic contacts with the United States434 such 

that the defendant would reasonably anticipate being required to respond 

to claims in an American court.435

In 2011, the Supreme Court considered personal jurisdiction in the 

products liability case of Goodyear Dunlop Tires Operations, S.A. v. 

Brown.

436 Goodyear involved a bus accident in France in which tires manufactured by the defendant (the Turkish subsidiary of an American company) allegedly failed, causing the deaths of several American citizens.

The North Carolina Court of Appeals determined that personal jurisdiction existed in North Carolina and allowed the case to proceed.

437 The 

Supreme Court reversed.

The Court noted that personal jurisdiction consists of two types: general and specific. General jurisdiction—which provides personal jurisdiction over a defendant in any legal matter—arises when a defendant’s 

contacts “with the State are so ‘continuous and systematic’ as to render 

[the defendant] essentially at home in the forum State.”438 Specific jurisdiction, on the other hand, applies to connections “‘between the forum 

and the underlying controversy,’ principally, an activity or occurrence 

that takes place in the forum State and is therefore subject to the State’s 

regulation.”439

 

PLO members in an ATA case arising out of a terrorist bombing in Israel, absent proof

that the researcher was authorized to accept service as their agent).

434. See In re Terrorist Attacks on Sept. 11, 2001, 740 F. Supp. 2d 494 (S.D.N.Y. 

2010) (granting in part and denying in part motions to dismiss claims brought pursuant 

to the ATS, ATA, TVPA, and RICO in multidistrict litigation arising out of 9/11 terrorist 

attacks in the United States on personal jurisdiction grounds).

435. Gilmore v. Palestinian Interim Self-Gov’t Auth., 422 F. Supp. 2d 96, 105 (D.D.C. 

2006) (dismissing ATA claims in which individual defendants had no contact whatsoever 

with the United States).

436. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).

437. Brown v. Meter, 681 S.E.2d 382 (N.C. 2009).

438. Goodyear, 131 S. Ct. at 2851 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 

317 (1945)).

439. Id. (internal citations omitted).
III. Procedural Issues

81

The Court’s rejection of the “stream of commerce” argument that 

had persuaded the North Carolina court is particularly relevant to human 

rights defendants who have little or no direct contact with the United 

States but whose products ultimately may be distributed in one or more 

American states. In Goodyear, the fact that a small number of the defendant’s products (tens of thousands of tires out of tens of millions—and 

none of the type of tire involved in the accident) were distributed in 

North Carolina from 2004 to 2007 was held insufficient to establish general jurisdiction in the state. And because the accident in question occurred overseas, the lack of connection between the underlying claims 

and the defendant’s conduct in the state prohibited specific jurisdiction 

as well.440

Human rights cases against corporate defendants raise similar questions of (1) whether parent companies are responsible for acts of their 

overseas subsidiaries and, if so, (2) whether personal jurisdiction exists 

over related entities. These questions came before the Supreme Court in 

a human rights case involving the Alien Tort Statute.

Daimler AG v. Bauman involved ATS claims that a German automobile manufacturer’s Argentinian subsidiary collaborated with state security forces in kidnappings, detentions, torture, and murders during Argentina’s “Dirty War” from 1976 to 1983.441 The plaintiffs sued Daimler 

using California’s long-arm statute, which authorizes personal jurisdiction to the full extent permitted under the United States Constitution.

The district court subsequently granted Daimler’s motion to dismiss, 

finding that the court lacked personal jurisdiction over this foreign corporation. The Ninth Circuit reversed, holding that the exercise of personal jurisdiction over Daimler was consistent with due process.442 Relying on an agency theory, the court of appeals determined that personal 

jurisdiction existed because Daimler’s local subsidiary in California pro-

 

440. Id. at 2855. See also J. McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873, 886 

(2011) (New Jersey courts could not assert personal jurisdiction over British manufacturer of a product purchased by a New Jersey business that allegedly injured an employee,

because the manufacturer had not “purposefully directed” its products toward New Jersey, even though it had encouraged its local distributors to market the product throughout the United States).

441. Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

442. See Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 931 (9th Cir. 2011).
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vided “important” services to Daimler in the state that were attributable 

to it.443

The Supreme Court reversed (9–0), holding the exercise of personal 

jurisdiction improper.444 The Court rejected the Ninth Circuit’s agency 

theory as vastly overbroad, noting that its “inquiry into importance 

stacks the deck, for it will always yield a pro-jurisdiction answer.”445 Even 

if the subsidiary’s conduct was imputable to Daimler, due process still 

prohibited the exercise of personal jurisdiction over it.

Because the underlying conduct occurred in Argentina and was unrelated to the defendant’s activities in California, Bauman addressed only 

general (“all-purpose”) personal jurisdiction.446 The Court noted that the 

“paradigm all-purpose forums” for corporations are their place of incorporation and their principal place of business.447 The majority expressly 

declined to adopt a broad standard that would allow personal jurisdiction 

whenever a corporation “engages in a substantial, continuous, and systematic course of business” in a particular state.448 It held that the proper 

question under Goodyear was whether the “foreign corporation’s ‘affiliations with the State’ are so ‘continuous and systematic’ as to render [the 

corporation] essentially at home in the forum State.”449 Because the instate contacts were insufficient to render Daimler “at home” in California, the due process clause prohibited the exercise of personal jurisdiction over it.450

 

443. Id. at 920.

444. See Bauman, 134 S. Ct. 746 (Justice Sotomayor concurred only in the result).

445. Id. at 759–60 (holding that the Ninth Circuit’s test would cover acts by distributors, subsidiaries, and independent contractors, and “thus appears to subject foreign corporations to general jurisdiction whenever they have an in-state subsidiary or affiliate, an 

outcome that would sweep beyond even the ‘sprawling view of general jurisdiction’ we 

rejected in Goodyear”) (internal quotations and citations omitted).

446. Id. at 758. The plaintiffs never asserted any grounds for specific jurisdiction in 

the case. Id.

447. Id. at 760–61.

448. Id.

449. Id. at 754 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. 

Ct. 2846, 2851 (2011)).

450. Id. at 761–62. Justice Sotomayor disagreed with the majority’s reasoning but 

concurred in the result. Id. at 763–74 (Sotomayor, J., concurring). Apart from the jurisdictional issues, the majority also noted that the underlying ATS and TVPA claims at 

issue had been rendered “infirm” by the Court’s other jurisprudence. Id. at 762–63 (citing
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83

The plaintiffs in Bauman did not allege that Daimler’s local subsidiary was an alter-ego of the parent company,451 and the conduct within the 

forum jurisdiction was insufficient in any event to allow personal jurisdiction.452 Things may work out differently in other cases involving overseas parent corporations (e.g., cases involving specific jurisdiction or 

cases in which there is sufficient conduct to render the parent corporations generally “at home” in the forum). As discussed above,453 although 

separation of entities is respected where corporate formalities are observed, the corporate veil may be pierced where conduct rises to the level 

of dominance and control over the subsidiary, making the subsidiary an 

alter-ego of the parent company. In such cases, an overseas parent company may be held to have engaged in sufficient conduct within the state

to justify an assertion of personal jurisdiction over it.454

C. Venue and Forum Non Conveniens

Once a defendant has been served and personal jurisdiction is established, the court may be called upon to resolve issues relating to venue 

and the doctrine of forum non conveniens. To date, venue has played a 

much smaller role in human rights cases than has forum non conveniens.

The ordinary venue rules generally apply in human rights cases: individual and corporate aliens may be sued in any district.455 Where Congress 

so specifies, special venue rules may apply to all claims (including human 

rights violations) arising out of certain events (e.g., the 9/11 terrorist at-

 

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013) (presumption against 

extraterritorial application of the ATS), and Mohamad v. Palestinian Auth., 132 S. Ct. 

1702 (2012) (limiting TVPA claims to defendants who were natural persons)).

451. Id. at 758.

452. Id. at 760–62.

453. See supra Part II.C.

454. See, e.g., Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1272–74 (11th Cir. 2002)

(overseas corporation engaged in substantial activity in jurisdiction through subsidiary 

that could not be characterized as isolated). In such cases, state long-arm statutes also 

may provide valid means of service on non-U.S. corporate defendants through their domestic subsidiaries. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 

(1988) (despite the transnational dimension of the case, “[w]here service on a domestic 

agent is valid and complete under both state law and the Due Process Clause, our inquiry 

ends and the [Hague] Convention has no further implications”).

455. 28 U.S.C. § 1391(d).
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tacks456) or involving certain types of defendants (e.g., foreign governments sued pursuant to a FSIA exception457).

The doctrine of forum non conveniens (inconvenient forum) involves 

more complicated legal issues. This doctrine provides a discretionary basis for requiring a particular case to be heard in another forum, even 

when all other considerations—such as jurisdiction and venue—are 

proper. Typically, it is raised by human rights defendants seeking to have 

the claims against them adjudicated either in their foreign home jurisdiction or in the overseas jurisdiction where the alleged injuries occurred.

Although it is often raised simultaneously with motions to dismiss on 

other grounds, federal courts may dismiss cases on the basis of forum non 

conveniens without first resolving challenges to subject-matter or personal jurisdiction.

458

The basic framework for forum non conveniens is reflected in two 

Supreme Court decisions from 1947—Gulf Oil Corp. v. Gilbert459 and 

Koster v. American Lumbermens Mutual Casualty Co.460 The analysis 

consists of two steps: (1) determining whether an adequate alternative 

forum exists that can hear the claim; and (2) considering whether the 

balance of public interests and private interests weighs in favor of trial in 

that forum instead of the court in which the case was filed.461 Defendants 

 

456. See, e.g., Pub. L. No. 107-42, 115 Stat. 230 (2001) § 408(b)(3) (exclusive jurisdiction and venue in Southern District of New York for claims arising out of September 11, 

2001, terrorist attacks).

457. See, e.g., 28 U.S.C. § 1391(f)(1)–(4) (2012) (venue in FSIA cases is always proper 

in District of Columbia, in addition to jurisdictions where the underlying events occurred 

or where disputed property is located).

458. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., 549 U.S. 422, 432 (2007) 

(unanimous decision holding that “[a] district court . . . may dispose of an action by a 

forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant”).

459. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

460. Koster v. Am. Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947).

461. See Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 100 (2d Cir. 2000) (citing

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and Koster v. Am. Lumbermens Mut. Cas. 

Co., 330 U.S. 518 (1947)).
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85

bear the “burden of showing that the Gilbert factors tilt strongly in favor 

of trial in the foreign forum.”462

The plaintiff’s choice of forum is a significant factor in this analysis.463 This consideration may be particularly important in human rights 

cases. The ATS case of Wiwa v. Royal Dutch Petroleum, for example, involved allegations that employees of the Nigerian subsidiary of a foreign 

oil company had engaged in summary executions, crimes against humanity, and torture. The Second Circuit noted that “[d]ismissal on 

grounds of forum non conveniens can represent a huge setback in a 

plaintiff’s efforts to seek reparations for acts of torture.”464 It found three 

factors particularly important: (1) the U.S.-resident plaintiff’s choice of 

the American forum; (2) the interests of the United States in providing a 

forum to redress international human rights violations; and (3) whether 

the factors weighing in favor of a foreign forum are “particularly 

compelling.”465

While not an issue in Wiwa,

466 the adequacy of the alternate forum is 

a critical issue in some human rights cases. A proposed alternative may 

be deemed inadequate if “[the forum] does not permit the reasonably 

prompt adjudication of a dispute, if the forum is not presently available, 

or if the forum provides a remedy so clearly unsatisfactory or inadequate 

that it is tantamount to no remedy at all.”467 Political unrest also can render a foreign forum unsuitable.

468

The assessment of the adequacy of the foreign forum is an ongoing 

process that may change during the course of litigation. In a pair of cases 

before the Southern District of New York, Adamu v. Pfizer, Inc.469 and 

 

462. Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 106 (2d Cir. 2000) (internal quotations and citations omitted).

463. See Gilbert, 330 U.S. at 508 (“unless the balance is strongly in favor of the 

defendant, the plaintiff’s choice of forum should rarely be disturbed”).

464. Wiwa, 226 F.3d at 105.

465. Id. at 101.

466. Id. (noting that the Second Circuit regarded “the British courts as exemplary in 

their fairness and commitment to the rule of law”).

467. Abdullahi v. Pfizer, Inc., 562 F.3d at 189 (2d Cir. 2009) (citing Piper Aircraft Co. 

v. Reyno, 454 U.S. 235, 254–55 & n.22 (1981)).

468. See, e.g., Hatzlach Supply, Inc. v. Tradewind Airways, Ltd., 659 F. Supp. 115

(S.D.N.Y. 1987) (finding Nigeria to be an inadequate forum).

469. Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495 (S.D.N.Y. 2005).
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Abdullahi v. Pfizer, Inc.,

470 groups of Nigerian plaintiffs asserted ATS 

claims for unlawful medical experimentation in connection with the administration of experimental antibiotics. The trial court rejected both 

complaints for failure to state a claim under the ATS, dismissing in the 

alternative on forum non conveniens grounds. But while the plaintiffs’

appeal was pending, “a tectonic change . . . altered the relevant political 

landscape” in Nigeria.471 In unrelated cases, Pfizer had become the target 

of a $2 billion criminal and civil investigation and a $7 billion federal 

government lawsuit in Nigeria.472 The Second Circuit ruled that nonconsensual medical experimentation was compensable under the ATS, 

reversed the dismissal on these grounds, and remanded the case for reconsideration of the forum non conveniens dismissal in light of the 

changed circumstances in Nigeria.473

The public interest of the United States in providing a remedy for 

international human rights violations is another significant factor.474 This 

interest may be overridden by other federal policy considerations, however. In Mastafa v. Australian Wheat Board,

475 for example, Iraqi victims 

of torture, imprisonment, and killing by Saddam Hussein’s regime sued 

an Australian company under the ATS for providing kickbacks in violation of the United Nations Oil-for-Food Program. The court found that 

Australia provided the most convenient alternative forum and dismissed 

the case under the forum non conveniens doctrine, reasoning that

[a]djudication of foreign claims under ATCA is certainly appropriate 

where an adequate foreign forum is unavailable or there is reason to 

 

470. Abdullahi v. Pfizer, Inc., No. 01-CV-8118, 2005 WL 1870811 (S.D.N.Y. Aug. 9, 

2005), rev’d and remanded by 562 F.3d 163 (2d Cir. 2009), cert. denied, 130 S. Ct. 3541 

(2010) (mem.).

471. Abdullahi v. Pfizer, Inc., 562 F.3d at 189.

472. Id. at 172.

473. Id. at 189–90.

474. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000)

(reversing dismissal on forum non conveniens grounds and noting as significant the 

“United States resident plaintiff’s choice of forum . . . [and] the interests of the United 

States in furnishing a forum to litigate claims of violations of the international standards 

of the law of human rights”); Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270, 1276–

77 (S.D. Fla. 2008) (alleged human trafficking of Cuban nationals by dry-dock company).

475. Mastafa v. Australian Wheat Bd., No. 07-CV-7955, 2008 WL 4378443 (S.D.N.Y. 

Sept. 25, 2008).
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87

think that the foreign forum lacks an interest in pursuing such an adjudication or that litigation in the United States would be more convenient for the parties. But where, as here, there is an adequate foreign forum with a profound interest in adjudicating the dispute and litigation 

here would be significantly less convenient, the abstract interest of the 

United States in enforcing international law does not compel an assertion of jurisdiction.476

Considerations of judicial comity also factor into the analysis. In Aldana v. Del Monte Fresh Produce,

477 the Eleventh Circuit upheld a district 

court’s dismissal of ATS claims alleging torture in retaliation for labor 

union activities in Guatemala. The court acknowledged the strong public 

interest in addressing torture claims, but it held that preventing forum 

shopping and maintaining comity with Guatemala were more important 

considerations in this case.478 The Second Circuit affirmed dismissal on 

similar grounds in another case, Türedi v. Coca-Cola Co., citing concerns 

about forum shopping and acknowledging substantial evidence that Turkey provided an adequate alternative forum to hear the plaintiffs’ claims 

against Turkish officials and companies for alleged assaults and wrongful 

arrests.479

D. Parties and Standing

As in all cases, before human rights litigation can proceed, the plaintiffs 

must establish that they have standing to assert the legal claims in question.480 Plaintiffs establish standing by demonstrating “[1] that [they 

have] suffered ‘injury in fact,’ [2] that the injury is ‘fairly traceable’ to actions of the opposing party, and [3] that a favorable decision [by the 

court] will likely redress the harm.”481 Standing must be established for 

 

476. Id. at *9. The court noted, however, that it would resume jurisdiction over the 

case if the Australian courts found jurisdiction to be lacking. Id.

477. Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (11th Cir. 2009).

478. Id. at 1299.

479. Türedi v. Coca-Cola Co., 343 F. App’x 623 (2d Cir. 2009).

480. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351–52 (2006). See also Wine & 

Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 44 (1st Cir. 2005) (“It is axiomatic that 

Article III standing is a constitutional precondition to a federal court’s power to adjudicate a case.”).

481. Nike, Inc. v. Kasky, 539 U.S. 654, 667 (2003) (quoting Bennett v. Spear, 520 U.S. 

154, 162 (1997)).
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each human rights claim or violation asserted. The applicable standards 

may vary depending upon the statute under which the claim is advanced.

For example, U.S. citizens may not bring federal claims under the ATS 

because it is a jurisdictional statute that confers standing only to aliens.

482

Under the TVPA, legal representatives of deceased American torture 

victims have standing to recover on behalf of the victim’s estate,483 but 

only the victims themselves may assert claims for torture that did not 

result in death.484 Standing has been upheld on a similar basis for ATS 

plaintiffs. In Baloco v. Drummond Co., the Eleventh Circuit reversed the 

district court’s dismissal on standing grounds, holding that where the 

alien plaintiffs’ “complaint alleges an intricate and vindictive plot, orchestrated by the defendants, that ultimately led to the assassinations of 

[their] fathers . . . . such conduct establishes a violation of international 

law sufficient for purposes of triggering ATS liability.”485

In cases in which foreign law applies, standing may turn on choiceof-law issues. Legal rules in other countries, for example, may allow 

broader categories of representation than would be permitted in many 

U.S. jurisdictions.486 Organizations also may have standing to assert human rights claims on behalf of their members. The test is whether 

1. the organization’s members would have standing to bring suit as 

individuals; 

2. the interests the organization seeks to protect by suit are germane 

to the organization’s ordinary purpose; and 

 

482. Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1026 (W.D. Wash. 2005).

483. See TVPA, 28 U.S.C. § 1350 (note) § 2 (2012); Cabello v. Fernández-Larios, 205 

F. Supp. 2d 1325, 1334–35 (S.D. Fla. 2002).

484. Cabello, 205 F. Supp. 2d at 1334–45.

485. Baloco v. Drummond Co., 640 F. 3d 1338, 1347 (11th Cir. 2011). (Addressing 

separate TVPA claims, the Baloco court also noted that “the TVPA expressly creates a 

separate cause of action for the wrongful death claimant through which ‘any person’ fitting that description can sue for TVPA damages.”)

486. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (allowing representation claim by siblings under Guatemalan law even though parents were not deceased).
III. Procedural Issues

89

3. the participation of an individual member is not required by the 

nature of either the claim asserted or the relief requested.487

In Presbyterian Church of Sudan v. Talisman Energy, for example, the 

court held that the Presbyterian Church of Sudan and an American nonprofit refugee organization, each of which sued in a representative capacity on behalf of its members, had standing to assert ATS claims that a 

Canadian energy company conspired with Sudanese government officials 

to “ethnically cleanse” civilian populations in order to facilitate oil exploration and extraction.488 However, organizations have been denied standing to represent members in human rights cases in which individualized 

proof is required to adjudicate the scope of damages for each victim.489

Even in such cases, however, organizations may be entitled to sue in their 

personal capacities.

490

Other issues relating to parties also can arise in human rights cases.

For example, in cases that otherwise meet the requirements established 

for class actions,491 claims for human rights violations may be addressed 

through these mechanisms.492 The same holds true for the consolidation 

 

487. See, e.g., United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 

553 (1996) (citing Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 

(1977)).

488. Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 331–33 

(S.D.N.Y. 2003).

489. See Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 119–20 (D.D.C. 2003)

(requirement of individualized proof leading to dismissal of organization); Nat’l Coal. 

Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 360 (C.D. Cal. 1997) (denying 

labor union associational standing to bring tort claims).

490. See Nat’l Coal. Gov’t of Union of Burma, 176 F.R.D. at 360 (labor union had 

standing to assert its own claims based on the increased cost of providing benefits to 

members as a result of defendant’s alleged conduct).

491. See Fed. R. Civ. P. 23(a) and 23(b).

492. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir. 1994) (affirming 

certification of class of 10,000 ATS claimants for acts of torture, summary execution, and 

enforced disappearances perpetrated by Marcos regime). It may prove difficult to 

properly certify human rights plaintiffs as a class, however. See, e.g., Cimino v. Raymark 

Indus., Inc., 151 F.3d 297, 319 (5th Cir. 1998) (distinguishing Hilao in light of the ATS

context and suggesting that the court “did not operate under the constraints of the Rules 

of Decision Act or Erie”), and Doe v. Karadzic, 176 F.R.D. 458, 463 (S.D.N.Y. 1997) (certifying class of Bosnian genocide victims with ATS claims under the limited funds provision of Fed. R. Civ. P. 23(b)(1) but expressing “grave doubts” that plaintiffs could establish “that common questions of law and fact will predominate and that the proposed class 
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of related claims in multidistrict litigation.493 The issue of joinder also 

may arise,494 particularly when necessary parties are entitled to immunity 

or are otherwise beyond the jurisdictional reach of the court.495

Lastly, where necessary, the court may adopt special procedures to 

accommodate unique circumstances. For example, although the federal 

rules normally require a complaint to include the names of all parties,496

courts have allowed plaintiffs to proceed anonymously in appropriate 

human rights cases.

497

E. Discovery

No special discovery concerns arise in human rights cases for parties and 

non-parties located within the United States. As long as litigants and 

 

action will be manageable”). See also Kpadeh v. Emmanuel, 261 F.R.D. 687 (S.D. Fla. 

2009) (critiquing Hilao and Karadzic and stating that “even those who advocate the relaxation of the Rule 23 requirements in cases of international human rights abuses . . . 

nonetheless agree that the courts in those cases did not engage in intellectually rigorous 

analyses of the class certification requirements).

493. See, e.g., In re Chiquita Brands Int’l, Inc. Alien Tort Statute and Shareholders 

Derivative Litig., 536 F. Supp. 2d 1371, 1372 (2008) (transfer order on centralization). See 

also In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 296 (S.D.N.Y. 2009) (MDL 

transfer court addressing class action issues in human rights claims).

494. See Fed. R. Civ. P. 19(b).

495. See, e.g., Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 777 (D.C. 

Cir. 1986) (holding that under Rule 19(b), dismissal of a suit against a sovereign Indian 

tribe was “mandated by the policy of tribal immunity”). See also Kickapoo Tribe of the 

Indians of the Kickapoo Res. in Kan. v. Babbitt, 43 F.3d 1491, 1496 (D.C. Cir. 1995) (noting that “‘there is very little room for balancing of other factors’ set out in Rule 19(b) . . .

because immunity may be viewed as one of those interests ‘compelling by themselves’”

that circumscribed the court’s usual discretion) (quoting Wichita and Affiliated Tribes of 

Okla. v. Hodel, 788 F.2d 765, 777 n.13 (D.C. Cir. 1986)). See also Provident Tradesmen’s 

Bank & Trust Co. v. Patterson, 390 U.S. 102, 118–19 (1968) (noting that some factors 

were “substantive, some procedural, some compelling by themselves, and some subject to 

balancing against opposing interests”).

496. Fed. R. Civ. P. 10(a).

497. See, e.g., Doe I v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998) (political 

activists and intellectuals alleging human rights violations by members of a radical Islamic opposition group during an ongoing civil war in Algeria); Xuncax v. Gramajo, 886 

F. Supp. 162 (D. Mass. 1995) (anonymity for minor plaintiff); Doe I v. Karadzić, 866 F. 

Supp. 734 (S.D.N.Y. 1994) (underlying claims involving “rape, forced prostitution, forced 

pregnancy, and forced childbirth”).
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91

third parties fall within the court’s jurisdiction, they can be required to 

provide documentary and testimonial evidence pursuant to the ordinary 

rules of civil procedure.498 But other human rights cases require courts to 

determine whether evidence and witnesses located abroad can be made 

available during discovery and for trial, despite falling outside the 

jurisdictional reach of the court.

Overseas discovery may be facilitated through procedures outlined in 

the Hague Convention on the Taking of Evidence Abroad in Civil or 

Commercial Matters (the “Hague Evidence Convention”).499 The Hague 

Evidence Convention applies to evidence located outside of the United 

States and provides specific means of international judicial cooperation 

to enable the parties to obtain it.

500 If evidence is located in a jurisdiction 

that is not party to the Hague Evidence Convention, the court may seek 

assistance from governmental authorities in that jurisdiction through a 

letter rogatory. Unless some kind of bilateral cooperation arrangement 

 

498. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of 

Iowa, 482 U.S. 522, 539–40 (1987) (the “Hague Convention did not deprive the District 

Court of the jurisdiction it otherwise possessed to order a foreign national party before it 

to produce evidence physically located within a signatory nation”). See also In re Aircrash 

Disaster Near Roselawn, Ind., 172 F.R.D. 295, 310 (N.D. Ind. 1997) (compelling discovery 

without resort to the Hague Convention on the basis that defendants “who, as a means of 

advancing their profit-making businesses in the United States, incorporated under the 

laws of the United States and then placed their [products] in this country’s stream of 

commerce, have little to complain about when served with enforceable discovery requests 

under the Federal Rules of Civil Procedure”).

499. Hague Convention on the Taking of Evidence Abroad in Civil or Commercial 

Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (allowing parties to request that 

the court forward an evidentiary request to reciprocal authorities in the receiving state, 

which in turn processes the request for implementation according to that jurisdiction’s 

usual procedures). The party advocating use of the Hague Evidence Convention bears the 

burden of establishing its applicability and effectiveness. See, e.g., Schindler Elevator 

Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525, 528–29 (D.N.J. 2009).

500. See Société Nationale, 482 U.S. at 534 (“The text of the Evidence Convention 

itself does not modify the law of any contracting state, require any contracting state to use 

the Convention procedures, either in requesting evidence or in responding to such 

requests, or compel any contracting state to change its own evidence-gathering 

procedures.”).
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exists with the other country, however, the foreign government’s compliance with the court’s request will be purely voluntary.501

Even when legal measures of cooperation with a foreign state exist, 

overseas discovery often is both procedurally complicated and time-consuming. Although discovery might normally be phased for other purposes (e.g., jurisdictional decisions, liability, damages), it may prove more 

efficient to allow overseas discovery on all issues simultaneously. The 

court may also consider the resources and capacity of each party to conduct lengthy discovery abroad.502 Considerations of efficiency and fairness may be offset by other factors, however (e.g., sovereign immunity, 

which is meant to protect foreign states from the burden even of pretrial 

litigation proceedings).

503

F. Parallel Criminal and Civil Proceedings

The existence of related criminal proceedings can also become an issue in 

human rights cases.504 As noted previously, Congress may make international law applicable within the United States, including international 

criminal prohibitions. Congressional authorization is required to make 

 

501. See Restatement (Third) of Foreign Relations Law § 473 reporter’s note 1 

(1987). This may create particular difficulties for plaintiffs claiming human rights abuses 

at the hands of government officials.

502. See, e.g., Bowoto v. Chevron Corp., No. C-99-02506-SI, Order Denying Bill of 

Costs, Apr. 22, 2009, at 3 (N.D. Cal. 2009) (denying post-trial costs, inter alia, on the basis 

that it was “beyond dispute that there is an extreme economic disparity between plaintiffs 

[Nigerian villagers in low-wage jobs] and defendants [oil companies with a net income of 

$23.93 billion in 2008]”), aff’d, 621 F.3d 1116 (9th Cir. 2010).

503. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (qualified immunity is “an 

entitlement not to stand trial or face the other burdens of litigation” that extends beyond 

a mere defense to liability). Assertions of immunity should be resolved as early as practicable. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (stressing “the importance of 

resolving immunity questions at the earliest possible stage in litigation”). For a detailed 

discussion, see David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for 

Judges, Part IV (Federal Judicial Center 2013) (discussing persons and entities entitled to 

immunity). 

504. The Model Order in Appendix C requires the parties to disclose this information and to supplement it when new details become available.
III. Procedural Issues

93

international crimes prosecutable in American courts because the Supreme Court abolished federal common-law crimes in 1812.505

One method used by Congress is to incorporate treaties or customary 

international law directly into federal law by reference.506 The other is to 

enact specific legislation that provides a basis for criminal prosecution in 

the United States. Congress has used both methods to domesticate many 

international crimes, including genocide,507 war crimes,508 and torture.509

Slavery, too, has long been criminalized as a matter of both international

law510 and federal law,

511 and it continues to be addressed in both settings 

today.512

 

505. See United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) (rejecting federal 

common-law crimes); Restatement (Third) of Foreign Relations Law § 111 cmt. I (1987)

(international law creating criminal offenses “could not itself become part of the criminal 

law of the United States, but would require Congress to enact an appropriate statute before an individual could be tried or punished for the offense”).

506. See U.S. Const. art. I, § 8, cl. 10 (“The Congress shall have Power . . . . To define 

and punish Piracies and Felonies committed on the high Seas, and Offenses against the 

Law of Nations”); United States v. Smith, 18 U.S. 153, 157 (1820) (upholding the constitutionality of Congress incorporating international law by reference and creating a criminal offense to punish “the crime of piracy, as defined by the law of nations”).

507. See Proxmire Act, 18 U.S.C. § 1091(a) (2012) (implementing legislation for the 

Genocide Convention).

508. See War Crimes Act of 1996, 18 U.S.C. § 2241 (1996) (prohibiting war crimes, 

defined relative to the four Geneva Conventions of 1949); Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261 (2000) (criminal offenses by U.S. armed forces and persons 

employed by or accompanying them outside the United States).

509. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, § 506, 18 

U.S.C. § 2340A (2001) (implementing legislation for the Convention Against Torture).

510. See, e.g., International Convention for the Suppression of the White Slave Traffic, May 4, 1910, art. 2–3, Gr. Brit. T.S. No. 20 (1912) (Cd. 6326); International Convention for the Suppression of the Traffic in Women and Children, 9 L.N.T.S. 415 (Sept. 30, 

1921); Convention for the Suppression of the Traffic in Persons and of the Exploitation of 

the Prostitution of Others, 96 U.N.T.S. 271 (Mar. 21, 1950).

511. See, e.g., U.S. Const. amend. XIII (abolishing slavery); White Slave Traffic Act of 

1910 (Mann Act), 18 U.S.C. §§ 2421–2424 (2000) (as amended) (federal legislation on 

slavery).

512. See, e.g., Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against 

Transnational Organized Crime, G.A. Res. 55/25, Annex II, U.N. Doc. A/RES/55/25/

Annex II (Nov. 15, 2000) (international convention); Trafficking Victims Protection 

Reauthorization Act, 18 U.S.C. §§ 1589–1591 (2012) (criminal prohibition on involuntary 
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Breaches of the criminal prohibitions on serious human rights violations may create civil liability as well. Conduct leading to criminal prosecution for war crimes,513 for example, also may constitute a compensable 

breach under the ATS or the TVPA.514 In such instances, the court may 

wish (or may even be required) to stay proceedings in the civil case 

pending the outcome of the criminal trial.

In some cases, federal statutes provide specific guidance or procedures with respect to related criminal proceedings. The TVPRA, for example, automatically stays civil proceedings while criminal investigations 

and prosecution “arising out of the same occurrence in which the claimant is the victim” are pending.515 The ATA and the FSIA state sponsors of 

terrorism exception do not automatically stay proceedings but instead 

provide mechanisms that allow courts to stay civil proceedings following 

a special request by the U.S. Attorney General.516 When specific mechanisms are not provided, the court’s range of options is the same as in 

other types of cases.

Similar issues may arise when other civil cases dealing with the same 

subject matter are pending. If parallel litigation is proceeding in another 

forum, the court can determine whether it should stay or dismiss the case 

before it,517 enjoin the parties from proceeding with the other case,518 or 

 

servitude, forced labor, and the trafficking of individuals to facilitate these crimes or 

sexual offenses against the person); Victims of Trafficking and Violence Protection Act of 

2000, 22 U.S.C. §§ 7101–7112 (2011) (as amended) (U.S. legislation providing for 

interdiction efforts and civil cause of action for victims of human trafficking).

513. War Crimes Act of 1996, 18 U.S.C. § 2441 (2012) (civilian jurisdiction over war 

crimes through the federal criminal processes). See also Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261–3267 (federal criminal jurisdiction for felonies committed by civilians who are employees, contractors, or family members of the U.S. military overseas).

514. See, e.g., Estate of Atban v. Blackwater Lodge Training Center, 611 F. Supp. 2d 

1, 10 n.6 (D.D.C. 2009) (noting criminal indictments relating to civil claims that defendant was liable for war crimes when civilian private military contractors opened fire 

during the Nisur Square incident in Iraq in 2007).

515. 18 U.S.C. § 1595(b)(1) (2012); Antonio-Morales v. Bimbo’s Best Produce, Inc., 

No. Civ. A.8:5105, 2009 WL 1591172, at *1 (E.D. La. Apr. 20, 2009).

516. See FSIA, 28 U.S.C. § 1605(g) (2012) (special procedures involving certifications 

by U.S. Attorney General); ATA, 18 U.S.C.A. § 2336(c) (2012) (same).

517. Dismissal is an exceptional remedy, however. See, e.g., Royal & Sun Alliance Ins. 

Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88, 95 (2d Cir. 2006) (noting that “cir-
III. Procedural Issues

95

enter other relief to reduce or eliminate the potential for inconsistent results. Multiple related cases also may be consolidated through MultiDistrict Litigation (MDL) transfer procedures or handled through class 

action mechanisms.519

G. Limitations Periods and Tolling

Some human rights cases are brought many years after the events in 

question occurred. The claims asserted must be considered in light of the 

relevant limitations periods, which will vary depending on the statutory 

basis for the cause of action at issue.

The Torture Victim Protection Act provides expressly for a ten-year 

statute of limitations,520 which has been judicially extended to ATS claims 

as well. Although the ATS does not include a statute of limitations,521 several federal courts have determined that the TVPA’s ten-year limitations 

period applies as the most closely analogous federal statute.522 This limitations period applies to all ATS claims—even international torts unrelated to actual torture.

523 The claims of trafficking victims under the 

 

cumstances that routinely exist in connection with parallel litigation cannot reasonably be 

considered exceptional circumstances, and therefore the mere existence of an adequate 

parallel action, by itself, does not justify the dismissal of a case on grounds of international comity abstention”).

518. Generally, the party seeking an antisuit injunction must establish that the parties in both cases are the same and that resolution of the case before the enjoining court 

would be dispositive of the issues in the other jurisdiction. See, e.g., China Trade & Dev. 

Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987) (enjoining judgment debtor 

from instituting overseas proceedings to collect on arbitral award subject to enforcement 

by federal courts in New York).

519. See, e.g., In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 296 (S.D.N.Y. 

2009) (MDL transfer court addressing class action issues in human rights claims); In re 

Chiquita Brands Int’l, Inc. Alien Tort Statute & S’holders Derivative Litig., 536 F. Supp.

2d 1371 (2008) (transfer order on centralization).

520. TVPA, 28 U.S.C. § 1350(2)(c) (note) (1992).

521. See, e.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462 (D.N.J. 1999).

522. See, e.g., Papa v. United States, 281 F.3d 1004, 1011–13 (9th Cir. 2002) (collecting cases and holding the TVPA to be the closest federal analogue to the ATS for purposes of imputing a statute of limitations).

523. See, e.g., Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004). See also Cabello v. Fernández-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005); Papa, 281 F.3d, at 1012; 

Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996).
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TVPRA must be brought within ten years,524 as must claims against 

designated state sponsors of terrorism under the FSIA525 and terrorism 

claims under the ATA.

526 Claims under both RICO527 and RFRA528 are 

subject to four-year limitations periods.

In some cases, principles of equitable tolling may allow claims to be 

brought outside the ordinarily prescribed period.529 Some limitations periods may be tolled because the human rights violation constitutes a continuing offense. In Bodner v. Banque Paribas,

530 the court found that because the defendant’s ongoing concealment of stolen property and refusal 

to return it were continuing offenses, “the statute of limitation has been 

tolled from running.”531

The calculation of a statute of limitations also may depend on how 

difficult it was for the plaintiffs to gather proof about the human rights 

violations in question. In Cabello v. Fernández-Larios, for example, the 

court held that the statute of limitations did not begin to run until the 

bodies of the alleged victims had been located and exhumed.532

 

524. TVRPA, 18 U.S.C. § 1595(c) (2012) (“No action may be maintained under this 

section unless it is commenced not later than . . . 10 years after the cause of action arose

. . . .”). See also Hernandez v. Attisha, 2010 WL 816160, at *4–5 (S.D. Cal. Mar. 4, 2010)

(discussing TVPRA’s limitations period).

525. FSIA, 28 U.S.C. § 1605(f) (2012).

526. ATA, 18 U.S.C. § 2335(a) (2012) (claims must be commenced “within 10 years 

after the date the cause of action accrued”). The 2013 National Defense Authorization 

Act, Pub. L. No. 112-239, 126 Stat. 1632 (2013), enlarged the ATA’s statute of limitations 

from four years to ten, which was intended to “be applied retroactively to pending 

claims.” See Linde v. Arab Bank, PLC, 950 F. Supp. 2d 459, 460 (E.D.N.Y. 2013) (restoring 

claims previously deemed time-barred).

527. See Agency Holding v. Malley-Duff Assocs., Inc., 483 U.S. 143, 156–57 (1987).

528. See, e.g., Jama v. INS, 343 F. Supp. 2d 338, 365 (D.N.J. 2004).

529. See, e.g. Arce v. Garcia, 434 F.3d 1254, 1261–65 (11th Cir. 2006) (discretion of 

district court to apply equitable tolling principles in human rights cases).

530. Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000).

531. Id. at 135. The court also noted that “systematic and historical denial and misrepresentation concerning the custody of the looted assets to plaintiffs and the public at 

large” also would have entitled the plaintiff “to the benefit of equitable tolling” had the 

limitations period begun to run. Id. at 135–36.

532. Cabello v. Fernández-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (holding that 

the Chilean political climate at the time and concealment of the murder by Chilean officials made it “nearly impossible for the Cabello survivors to discover the wrongs perpetrated” and bring suit).
III. Procedural Issues

97

Tolling also may depend on conditions abroad, such as the pendency 

of a civil war or a brutal government remaining in power. In Chavez v. 

Carranza, the court held that equitable tolling should apply “where extraordinary circumstances outside plaintiff’s control make it impossible 

for plaintiff to timely assert his claim.”533 The Chavez court applied equitable tolling to ATS and TVPA claims of torture committed during El 

Salvador’s civil war, holding that the ongoing violence made it impossible 

for the plaintiffs to assert their claims beforehand.

534

The Ninth Circuit made a similar determination in Hilao v. Estate of 

Marcos, a case in which ongoing intimidation and justifiable fears of retaliation warranted equitable tolling of the limitations period for ATS

and TVPA claims while Ferdinand Marcos remained president.535 The 

Eleventh Circuit made a similar determination in Jean v. Dorelien with 

respect to claims against former Haitian military leaders and government 

officials during the years in which their regime held power.

536 Tolling also 

may depend on decisions by the United States government, such as executive branch determinations that immunity does or does not apply to 

certain defendants.

537

Other aspects of a human rights defendant’s conduct also may be 

relevant. The ATA provides that “the absence of the defendant from the 

United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, or of 

any concealment of the defendant’s whereabouts, shall not be included in 

the 10-year period.”538 “Whereabouts” refers to physical location, such 

that a defendant who makes no effort to hide and is present in the juris-

 

533. Chavez v. Carranza, 407 F. Supp. 2d 925, 928 (W.D. Tenn. 2004). See also Arce 

v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (equitable tolling applied to nearly identical facts).

534. Chavez, 407 F. Supp. 2d at 927–30.

535. Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1994) (noting that Marcos 

officials were protected from suit and that individual claimants were subjected to intimidation and legitimately feared retaliation).

536. Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005).

537. Collett v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 230 

(D.D.C. 2005) (holding that the TVPA’s ten-year statute of limitations was tolled while

defendants had immunity, because claims would have been barred beforehand).

538. 18 U.S.C. § 2335(b) (2012).
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diction is not subject to the exception.539 “Concealment” requires improper hiding of information or other forms of deception.540 In Litle v. 

Arab Bank, PLC,

541 the court declined to apply statutory tolling because 

the defendant bank merely kept banking client information secret in accordance with applicable law.542 But when a plaintiff demonstrates active 

concealment of the very conduct upon which claims are based, the court 

may deny requests to dismiss on limitations grounds.543

In all instances, the burden rests on the plaintiff to establish that equitable tolling applies.544 Lack of diligence in pursuing a claim undermines the request. A plaintiff’s ignorance of available legal remedies does 

not warrant equitable tolling,545 even if this ignorance results from 

changes in laws that otherwise would have alerted the plaintiff of the 

right to sue.546

 

539. See, e.g., Strauss v. Credit Lyonnais, S.A., No. CV-06-0702, 2007 WL 2296832, at 

*3–4 (E.D.N.Y. Aug. 6, 2007).

540. Id. at *4–5.

541. Litle v. Arab Bank, PLC, 507 F. Supp. 2d 267 (E.D.N.Y. 2007).

542. Id. at 272–73. The Litle decision was vacated in light of subsequent congressional action that retroactively enlarged the ATA’s limitations period to ten years. See

Linde v. Arab Bank, PLC, 950 F. Supp. 2d 459, 461 (E.D.N.Y. 2013).

543. In re Chiquita Brands Int’l, Inc., 690 F. Supp. 2d 1296, 1306–07 (S.D. Fla. 2010)

(credible allegations of concealment and misrepresentations in connection with secret 

payments to terrorist organizations).

544. Id. at 1306.

545. See Arraz-Saenz v. Colorado, No. 07–CV–02046, 2009 WL 3162258, at *5–6 (D. 

Colo. Sept. 29, 2009).

546. See, e.g., Fayoade v. Spratte, 284 F. App’x 345, 347 (7th Cir. 2008).
99

IV. Immunity

Immunity questions usually arise early on in human rights cases.

547 The 

Supreme Court itself has noted “the importance of resolving immunity 

questions at the earliest possible stage in litigation.”548 These questions 

should be resolved early because, apart from being a substantive defense 

to liability, immunity includes the grant of “an entitlement not to stand 

trial or face the other burdens of litigation.”549

A. Foreign Sovereign Immunities Act

Human rights statutes do not operate to waive the sovereign immunity 

that foreign states normally enjoy in the United States.550 The Foreign 

Sovereign Immunities Act (FSIA) provides the sole basis for bringing 

claims against foreign states and their agencies and instrumentalities in 

U.S. courts.551 Immunity is the default position; human rights plaintiffs 

suing foreign governments must establish that a FSIA exception exists 

before the court may hear the case.552 “[U]nless a specified exception applies, a federal court lacks subject matter jurisdiction over a claim against 

a foreign state.”553

 

547. The discussion of immunity here is necessarily brief. For additional details, see 

generally David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges

(Federal Judicial Center 2013) (discussing immunity issues under FSIA and other federal 

law).

548. Hunter v. Bryant, 502 U.S. 224, 227 (1991).

549. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

550. See, e.g., Rosner v. United States, 231 F. Supp. 2d 1202, 1210 (S.D. Fla. 2002) (no 

immunity waiver in the ATS); Lafontant v. Aristide, 844 F. Supp. 128, 138–39 (E.D.N.Y. 

1994) (no immunity waiver in the TVPA).

551. See, e.g., Argentine Republic v. Amerada Hess, 488 U.S. 428, 434 (1989) (holding “that the text and structure of the FSIA demonstrate Congress’ intention that the 

FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts”).

552. Id. at 434–35.

553. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Note that the FSIA only exempts sovereign property located within the United States. See Republic of Argentina v. 

NML Capital Ltd., 134 S. Ct. 2250 (2014) (holding that the FSIA neither forbade nor limited federal proceedings in aid of execution against assets held outside the United States 

by a foreign sovereign judgment debtor).
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The FSIA codifies the “restrictive” theory of sovereign immunity, 

which the Supreme Court has applied retroactively to cover conduct that 

occurred prior to its enactment in 1976.554 Apart from the terrorism exceptions discussed above, for a claim against a foreign sovereign to proceed, the FSIA generally requires that the sovereign either waive immunity or have engaged in commercial activities connected to the United 

States.555 Entities not recognized as foreign states by the United States are 

not entitled to FSIA immunity, however, even if they exercise some functions normally allocated to sovereigns.556

B. Individual Foreign Government Officials

Federal courts recognize a distinction between immunity based on position and immunity based on conduct. Position-based immunity protects 

high-level government officials (e.g., heads of state, diplomats) from judicial process on the basis of the position they presently hold, such that it 

ceases to apply once they leave office. It applies whether the conduct in 

question is public or private in nature. Conduct-based immunity, in 

contrast, protects all governmental officials acting on behalf of the state 

from judicial proceedings based on their official conduct. It is more durable temporally, because it applies even after they leave office, but it also 

 

554. Republic of Austria v. Altmann, 541 U.S. 677, 697–700 (2004).

555. 28 U.S.C. § 1605(a)(3) (2012) (covering cases “in which rights in property taken 

in violation of international law are in issue and that property or any property exchanged 

for such property is present in the United States in connection with a commercial activity 

carried on in the United States by a foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the 

foreign state and that agency or instrumentality is engaged in a commercial activity in the 

United States”); Altmann, 541 U.S. at 691 (applying FSIA to property dispute arising out 

of claims that the Austrian government violated international law by unlawfully retaining 

works of art stolen from Jewish owners during the Nazi era).

556. See, e.g., Gilmore v. Palestinian Interim Self-Gov’t Auth., 422 F. Supp. 2d 96, 

101 (D.D.C. 2006) (Palestinian Interim Self-Government Authority was not a sovereign 

state entitled to immunity in ATA case); Knox v. Palestine Liberation Org., 306 F. Supp. 

2d 424, 438–39 (S.D.N.Y. 2004) (neither the PLO nor the Palestinian Authority constituted a “state” under FSIA and thus could not claim immunity with respect to ATA 

claims arising out of the murder of an American citizen during a terrorist attack in 

Israel).
IV. Immunity

101

is narrower because it only applies to official conduct and provides no 

protection for private conduct.557

Although the FSIA does not reference individual foreign government 

officials, sovereign immunity extends to individuals when they are heads 

of state or other high-level government actors who essentially are indistinguishable from the state itself.558 This position-based immunity arises 

from policy considerations:

[F]ar greater likelihood exists for stirring embarrassment and offense to 

national pride and provoking acts of retaliation in connection with an 

exercise of jurisdiction extended individually to a nation’s ruler by denial of sovereign immunity than by such action asserted against state 

commercial entities or even lesser foreign government officials. The 

potential for harm to diplomatic relations between the affected sovereign states is especially strong in cases . . . that essentially entail branding a foreign ruler with the ignominy of answering personal accusations 

of heinous crimes.559

In 2010, the Supreme Court held in Samantar v. Yousuf that common law—not the FSIA—determines whether individual foreign officials 

enjoy immunity for actions taken during their time in office.

560 The 

Court held further that the common law also determines whether former

officials may claim such immunity.561

The federal courts of appeals are divided over whether immunity 

principles apply to a particular type of human rights claim—the alleged 

violation of international jus cogens norms by government officials. Jus 

cogens obligations (also called peremptory norms) are a small set of in-

 

557. See generally Altmann, 541 U.S. at 708–11, 715 (Breyer, J., concurring).

558. See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 132, 138–39 (E.D.N.Y. 1994)

(“Head of state immunity, like foreign sovereign immunity, is premised on the concept 

that a state and its ruler are one for purposes of immunity.”).

559. Tachiona v. Mugabe, 169 F. Supp. 2d 259, 291 (S.D.N.Y. 2001), aff’d sub nom. in 

part, rev’d in part, and remanded by Tachiona v. United States, 386 F.3d 205 (2d Cir. 

2004) (disposing of the case on other grounds and declining to reach the question of 

head-of-state immunity).

560. Samantar v. Yousuf, 560 U.S. 305, 308, 325 (2010) (remanding for a determination on “[w]hether petitioner may be entitled to immunity under the common law, and 

whether he may have other valid defenses to the grave charges against him”).

561. See id. at 310 n.5 (“Because . . . individual officials are not covered by the FSIA, 

petitioner’s status as a former official is irrelevant to our analysis.”) and id. at 322 n.17

(noting that the FSIA does not address whether it covers former government officials).
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ternational legal rules that are binding on all states regardless of consent.

They are defined as “norm[s] accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm 

of general international law having the same character.”562 Genocide and 

other serious human rights violations are considered violations of jus cogens.

563 Because breaches of jus cogens norms are per se ultra vires to legitimate governmental authority, some courts have held that immunity 

cannot apply, while others have taken the opposite view.564

The Fourth Circuit’s remand decision in Samantar v. Yousuf rested 

on the previously discussed distinction between “position-based” or 

“head-of-state” immunity and “official conduct” immunity. The court 

noted a trend in U.S. case law to treat “position-based” immunity as absolute and applicable even to jus cogens claims, but not to treat “official

conduct” immunity in the same way, since by definition such violations 

could never be deemed legitimate official acts. The Fourth Circuit ultimately concluded that Samantar himself was not entitled to “official conduct” immunity under the common law because his case involved jus 

cogens violations.565

Whether a government official’s decisions involve nonjusticiable 

political questions and whether they constitute acts of state are separate 

matters (discussed below566), even though these issues are often raised in 

connection with assertions of immunity on other grounds.

567

 

562. Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 

331. See also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 

1992) (noting that “[w]hereas customary international law derives solely from the consent 

of states, the fundamental and universal norms constituting jus cogens transcend such 

consent, as exemplified by the theories underlying the judgments of the Nuremberg tribunals following World War II”).

563. See, e.g., Restatement (Third) of Foreign Relations Law § 102 cmt. k, n.6 (1987).

564. Compare Ye v. Jiang Zemin, 383 F.3d 620, 625–27 (7th Cir. 2004) (upholding 

executive branch’s request to recognize such immunity), with Hilao v. Estate of Marcos, 

25 F.3d 1467, 1472 (9th Cir. 1996) (denying immunity on the basis that “Marcos’ acts of 

torture, execution, and disappearance were clearly acts outside of his authority as 

President”).

565. Yousuf v. Samantar, 699 F.3d 763, 777 (4th Cir. 2012).

566. See infra Parts V.A and V.B.

567. See, e.g., Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) (dismissing case 

on political question grounds but noting that Attorney General had certified that gov-
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103

C. Individual U.S. Government Officials

Nothing in the ATS precludes its application to U.S. state or federal government officials,568 although claims against such officials are governed 

by domestic law on governmental immunity. Claims against federal officials, for example, are allowed only insofar as governmental immunity is 

waived under the Federal Tort Claims Act (FTCA).569 The FTCA operates in conjunction with the Westfall Act,570 which substitutes the U.S. 

government as the defendant in claims against individual federal employees who are certified by the Attorney General to have been acting 

within the scope of their employment when the events allegedly causing 

the injury occurred.571

The FTCA imposes significant limitations on the ability of human 

rights plaintiffs to recover against U.S. government officials, however.

The exception to immunity applies only to conduct occurring in the 

United States.572 The Supreme Court interpreted this restriction broadly

in Sosa, holding that the FTCA’s exception for claims “arising in a foreign country” barred claims for injuries suffered abroad, even when acts 

and omissions that allegedly caused the foreign injury took place in the 

United States.573

Intentional torts (which comprise most human rights claims) are actionable under the FTCA only with respect to law enforcement officers.574

In practice, this provision effectively eliminates many cases against cur-

 

ernment officials acted within the scope of their employment in a case alleging that officials had supported the kidnapping, torture, and assassination of a Chilean military officer during a coup d’état).

568. See, e.g., Martinez v. City of Los Angeles, 141 F.3d 1373, 1379, 1384 (9th Cir. 

1998) (holding that the ATS applied to the Los Angeles Police Department but determining that the detention at issue was not “arbitrary” under international law).

569. Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2675, & 2680 [hereinafter 

FTCA].

570. Westfall Act, 28 U.S.C. § 2679(d)(1) (2012).

571. The U.S. government substituted itself for the original defendants in the Sosa

litigation, for example. See Alvarez v. United States, 331 F.3d 604, 631–32 (9th Cir. 2003) 

(en banc) (holding that the ATS provided no exception to substitution provisions of the 

Westfall Act), rev’d on other grounds, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

572. FTCA, 28 U.S.C. § 2680(k).

573. Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).

574. FTCA, 28 U.S.C. § 2680(h).
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rent or former U.S. governmental officials. Even when an official is sued 

individually, once the official is removed via substitution, the government can move to dismiss on the basis of the intentional tort exception 

(except when substituting for law enforcement officers).575 The FTCA

also excludes combat activities by U.S. military forces during wartime.

576

Some courts have held that this immunity extends to federal military 

contractors as well.

577

 

575. See, e.g., Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005).

576. FTCA, 28 U.S.C. § 2680(j) (2012); Koohi v. United States, 976 F.2d 1328, 1337 

(9th Cir. 1992) (holding that “one purpose of the combatant activities exception [to the 

FTCA] is to recognize that during wartime encounters no duty of reasonable care is owed 

to those against whom force is directed as a result of authorized military action”).

577. See, e.g., Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009) (addressing claims 

against private contractors providing interrogation and interpretation services at Abu 

Ghraib prison in Iraq and holding that “[d]uring wartime, where a private service contractor is integrated into combatant activities over which the military retains command 

authority, a tort claim arising out of the contractor’s engagement in such activities shall 

be preempted”); Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 

104, 123–24 (2d Cir. 2008) (holding that “government contractor defense operates as a 

complete bar” to claims).
105

V. Judicial Abstention

Human rights cases have the potential to intersect with complex and sensitive issues of foreign relations, which, in turn, give rise to separation of 

powers concerns. Federal courts have invoked three interrelated bases for 

judicial abstention in order to manage the potential conflicts in such 

cases: (1) the political question doctrine, (2) the act of state doctrine, and 

(3) principles of judicial comity. A fourth issue—the state secrets doctrine—protects national security by allowing the political branches to 

designate certain materials and information as off-limits in judicial 

proceedings.

While each judicial abstention basis reflects its own legal principles 

and policy choices, all three generally aim at a similar question. As the 

Ninth Circuit put it, they “all in effect provide different ways of asking 

one central question: are United States courts the appropriate forum for 

resolving the plaintiffs’ claims?”578 Abstention is an exception to the general rule that federal courts will hear all cases legitimately brought before 

them.579 Consequently, courts should apply these principles only when

important countervailing factors weigh against judicial resolution of a 

human rights case.580 The state secrets doctrine, while of a different character, also is a limited rule of application predicated on necessity.

Each of these issues is discussed below.

A. The Political Question Doctrine

Cases that present so-called “political” questions—those involving the exercise of political judgment and policy-making discretion—are regarded 

as nonjusticiable because federal courts are prohibited from adjudicating 

“policy choices and value determinations constitutionally committed to 

the halls of Congress or the confines of the Executive Branch.”581 Federal 

courts decline to hear such cases in order to avoid interfering in matters 

 

578. Sarei v. Rio Tinto, 487 F.3d 1193, 1197 (9th Cir. 2007).

579. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (“It is most true that 

this Court will not take jurisdiction if it should not; but it is equally true that it must take 

jurisdiction, if it should.”).

580. See generally Howard Fink et al., Federal Courts in the 21st Century 763–71 (3d

ed. 2007) (discussing various abstention doctrines as applied in federal jurisprudence).

581. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).
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that the U.S. Constitution allocates to the expertise and authority of another branch of federal government.582

The political question doctrine “is primarily a function of the separation of powers”583 among the three branches of federal government in the 

United States. In Baker v. Carr, the Supreme Court identified six factors 

that often are “[p]rominent on the surface of any case held to involve a 

political question.”584 The presence of any of the following six “Baker factors” weighs in favor of dismissal, provided that the factor “is inextricable 

from the case”:

(1) A textually demonstrable constitutional commitment of the issue 

to a coordinate political department; or

(2) A lack of judicially discoverable and manageable standards for resolving it; or 

(3) The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or 

(4) The impossibility of a court’s undertaking independent resolution 

without expressing lack of the respect due coordinate branches of government; or 

(5) An unusual need for unquestioning adherence to a political decision already made; or 

(6) The potentiality of embarrassment from multifarious pronouncements by various departments on one question.585

 

582. There is a division of authority over whether the political question doctrine is 

jurisdictional or prudential. Compare, e.g., Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 

(9th Cir. 2007) (holding that political question doctrine is jurisdictional, rather than prudential), with Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57 (2d Cir. 2005)

(“Judicial deference to the Executive Branch on questions of foreign policy has long been 

established under the prudential justiciability doctrine known as the ‘political question.’”).

583. Baker v. Carr, 369 U.S. 186, 210 (1962).

584. Id. at 217.

585. Id. (“Unless one of these formulations is inextricable from the case at bar, there 

should be no dismissal for non-justiciability on the ground of a political question’s 

presence.”).
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107

The first factor does not apply when a question involves statutory construction and analysis of federal law,586 however, including judicial interpretation of the ATS.

587

The political question doctrine includes matters affecting U.S. foreign relations, which are allocated by the U.S. Constitution to the discretion of the executive branch.

588 It may prohibit a court from resolving a 

case involving human rights violations that are linked to policy decisions 

by the U.S. government, because such cases involve “questions, in their 

nature political, or which are, by the constitution and laws, submitted to 

the executive.”589

The doctrine seeks to avoid situations in which the outcome of private civil litigation might be inconsistent with or otherwise inhibit the 

President’s foreign policy decisions. Human rights cases have been dismissed, for example, with respect to 

• the U.S. government’s removal of indigenous peoples from islands 

in the Chagos Archipelago in order to build a military base;

590

• executive resolution of intergovernmental claims for involuntary 

sexual servitude by Japan during World War II;

591 and 

 

586. See Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430–31 (2012) (holding that the 

interpretation of a federal statute, even one that the State Department refuses to enforce 

on the grounds of interference with its exclusive province in foreign affairs, presents a 

question for the judicial branch, whose resolution is not prohibited by the political question doctrine).

587. See, e.g., Sarei v. Rio Tinto, 487 F.3d 1193, 1204 (9th Cir. 2007) (noting that 

“[w]hen the Supreme Court reversed our en banc decision in Sosa, it did not question our 

conclusion that ATCA suits are constitutionally entrusted to the judiciary”); Kadic v. 

Karadžić, 70 F.3d 232, 249 (2d Cir. 1995) (holding that “the existence of judicially discoverable and manageable standards further undermines the claim that such suits relate to 

matters that are constitutionally committed to another branch”).

588. See U.S. Const. art. II, § 2.

589. Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005) (citing Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 170 (1803)).

590. See Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006).

591. See Joo v. Japan, 413 F.3d 45, 52–53 (D.C. Cir. 2005). See also You v. Japan, No. 

C-5-03257, 2015 WL 6689398, at *2–3 (N.D. Cal. Nov. 3, 2015) (dismissing, inter alia,

because the case presented a nonjusticiable political question) (citing Joo v. Japan, 413 

F.3d 45 (D.C. Cir. 2005)).
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• allegations of U.S. support of kidnapping, torture, and assassination in Chile during a coup d’état in the early 1970s.592

When a pending case implicates either the conduct of a foreign government or some other aspect of foreign policy, the U.S. State Department often makes its views known by filing a statement of interest with 

the court. (It may do so of its own volition or at the request of the court 

or a party.) Although not dispositive, such statements are highly persuasive as to whether the court should dismiss a case on political question 

grounds.593 While preserving judicial discretion, the Supreme Court has 

noted that “[i]n such cases, there is a strong argument that federal courts 

should give serious weight to the Executive Branch’s view of the case’s 

impact on foreign policy.”594

The political question doctrine applies even in cases involving only 

private parties, including corporate defendants.595 In Mujica v. Occidental 

Petroleum Corp., for example, a district court dismissed on political question grounds ATS and TVPA claims grounded in the bombing of a 

village by the Colombian military.

596 The court relied heavily on the State 

Department’s opinion that the case would interfere with the Chief Executive’s approach to encouraging protection of human rights in Colombia. 

It found that both the fourth Baker factor (respect due coordinate 

branches of government) and fifth Baker factor (adherence to a prior 

political decision) warranted dismissal.597 Direct input from the executive 

branch is not required, however. Courts have dismissed cases on political 

 

592. See Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005).

593. See, e.g., Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1188 n.18 

(C.D. Cal. 2005) (noting that federal courts must accept such statements at “face value”

and may not inquire into whether the executive’s position was wise or well-founded),

remanded by 564 F.3d 1190 (9th Cir. 2009).

594. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (citing Republic of Austria v. Altmann, 541 U.S. 677 (2004)).

595. See, e.g., Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) (applying Baker

factors and declining to dismiss on political question grounds claims of victims of crimes 

in Europe during World War II against foreign banks).

596. Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005).

597. See id. at 1195.
V. Judicial Abstention

109

question grounds even when the State Department has not provided details on its position in the case.

598

The principles involved in the political question doctrine apply even

when the violations in question took place decades ago. For example, the 

D.C. Circuit Court of Appeals dismissed the claims of former “comfort 

women” forced into sexual slavery during Japanese occupation of their 

home nations in World War II.599 It noted that “the Executive has persuasively demonstrated that adjudication by a foreign court not only would 

‘un-do’ a settled foreign policy of state-to-state negotiation with Japan, 

but also could disrupt Japan’s ‘delicate’ relations with China and Korea, 

thereby creating ‘serious implications for stability in the region.’”600 Because the case involved “a nonjusticiable political question,” the court 

deferred to the executive branch’s discretion and dismissed the claims.

601

This does not mean, however, that courts must automatically abstain 

whenever a case involves some aspect of foreign relations. In Baker v. 

Carr, the Supreme Court noted that “it is error to suppose that every case 

or controversy which touches foreign relations lies beyond judicial cognizance.”602 Rather, each application requires “a discriminating analysis 

of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in 

the light of its nature and posture in the specific case, and of the possible 

consequences of judicial action.”603 Thus, if a human rights case “does not 

require an evaluation of any executive or congressional policy decision or 

value judgment,” dismissal on political question grounds is unnecessary.604 Because the political question doctrine presupposes an actual sov-

 

598. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 978 n.3 (9th Cir. 2007) (noting that 

“it remains our responsibility to determine whether a political question is present, rather 

than to dismiss on that ground simply because the Executive Branch expresses some hesitancy about a case proceeding”) (internal quotations omitted).

599. See Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005).

600. Id. at 52 (quoting U.S. Statement of Interest at 34–35).

601. Id. (holding that “[t]he Executive’s judgment that adjudication by a domestic 

court would be inimical to the foreign policy interests of the United States is compelling 

and renders this case nonjusticiable under the political question doctrine”).

602. Baker v. Carr, 369 U.S. 186, 211 (1962).

603. Id. at 211–12.

604. Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 19–20 (D.D.C. 2006) (political 

question doctrine would not bar the court from hearing a case that did not require the 
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ereign with whom the executive branch conducts foreign relations, it has 

limited application to cases involving non-state entities.605

B. The Act of State Doctrine

The act of state doctrine, while not a form of position-based immunity, 

also may preclude litigation arising out of the conduct of foreign officials.

The doctrine prohibits federal courts from deciding cases that require 

them to adjudicate the validity of official acts or decisions by foreign governments within their own territory.

606 “Courts must dismiss under the 

act of state doctrine when resolution of a suit would require the court to 

declare invalid and ineffective as ‘a rule of decision for the courts of this 

country’ the official act of a foreign sovereign.”607 It thus operates “as a 

substantive defense on the merits.”608

The act of state doctrine applies simultaneously with the related legal 

principles governing immunity. While both issues may be raised in the 

same case on the basis of similar facts, they remain separate grounds for 

dismissal. As noted above, individuals may claim sovereign immunity 

based upon their official acts as heads of state or other high-level gov-

 

adjudication of executive or congressional value judgments or policy choices). This case 

subsequently was dismissed on other grounds by the Supreme Court in Republic of Iraq v. 

Beaty, 556 U.S. 848 (2009), in which the Court held that the FSIA exception for state 

sponsors of terrorism, pursuant to which the case was brought, ceased to operate against 

Iraq when the President removed Iraq from the designated list of state sponsors of terrorism. Id. at 2195.

605. See Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424, 448–49 (S.D.N.Y. 

2004) (political question doctrine would not bar ATA action against Palestinian Liberation Organization and the Palestinian Authority for deaths of American citizens during a 

terrorist attack in Israel).

606. See Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 n.4 (1972)

(Douglas, J., concurring) (“The history of the [Act of State] doctrine indicates that its 

function is not to effect unquestioning judicial deference to the Executive, but to achieve 

a result under which diplomatic rather than judicial channels are used in the disposition 

of controversies between sovereigns.” (internal citations omitted)).

607. Gross v. German Found. Indus. Initiative, 456 F.3d 363, 391–92 (3d Cir. 2006)

(quoting W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 405 (1990) (“In 

every case in which we have held the act of state doctrine applicable, the relief sought or 

the defense interposed would have required a court in the United States to declare invalid 

the official act of a foreign sovereign performed within its own territory.”)).

608. Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004).
V. Judicial Abstention

111

ernment officials.

609 The act of state doctrine focuses on whether a federal 

court is being asked to potentially delegitimize the decision or conduct of 

a foreign government on its own soil.

The application of the act of state doctrine to human rights cases depends principally on the grounds underlying the plaintiff’s claims for relief. The doctrine applies in litigation between private parties, given the 

underlying goal of ensuring that U.S. adjudication will not “interfere with 

the executive’s conduct of American foreign policy.”610 That said, neither 

acts clearly beyond the scope of a government official’s authority611 nor 

conduct performed in a personal capacity612 falls within the doctrine’s 

application.

The Second Circuit has noted that “it would be a rare case in which 

the act of state doctrine precluded suit under [the ATS,]”613 although the 

doctrine has been applied even in cases in which the claims, if proved, 

would constitute violations of jus cogens human rights norms.

614 That 

said, alleged violations of widely accepted and clearly defined rules of 

international law generally do not fall under the act of state doctrine because the disputed conduct involves the breach of an international rule, 

rather than a judicial assessment of the validity of the internal conduct of 

a foreign state.

615 The Supreme Court has provided three factors for 

courts to consider in such cases: 

 

609. See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 138–39 (E.D.N.Y. 1994).

610. Sarei v. Rio Tinto, 487 F.3d 1193, 1208 (9th Cir. 2007) (vacated on other 

grounds, Sarei v. Rio Tinto, 550 F.3d 822, 844 (9th Cir. 2008) (en banc)). See also Callejo 

v. Bancomer, S.A., 764 F.2d 1101, 1113 (5th Cir. 1985) (“In the act of state context, even if 

the defendant is a private party, not an instrumentality of a foreign state, and even if the 

suit is not based specifically on a sovereign act, we nevertheless decline to decide the 

merits of the case if in doing so we would need to judge the validity of the public acts of a 

sovereign state performed within its own territory.”).

611. Sarei, 487 F.3d at 1209–10.

612. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1471 (9th Cir. 1996).

613. Kadic v. Karadžić, 70 F.3d 232, 250 (2d Cir. 1995).

614. See, e.g., Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1032–33 (W.D. Wash. 

2005) (holding, inter alia, that the act of state doctrine precluded adjudication of case in 

federal courts); Doe v. State of Israel, 400 F. Supp. 2d 86, 113–15 (D.D.C. 2005) (same).

615. See Restatement (Third) of Foreign Relations Law § 443 cmts. b & c (1987).
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1. “the degree of codification or consensus concerning a particular 

area of international law” (the greater the consensus, the more 

appropriate judicial resolution of that issue); 

2. the importance of the matter for U.S. foreign relations (the less 

important, “the weaker the justification for exclusivity in the political branches”); and 

3. whether the foreign government that engaged in the act in question still exists (if not, the doctrine’s application “may, as a result, 

be measurably altered”).

616

C. Judicial Comity

The doctrine of judicial comity (distinct from the prescriptive comity at 

issue in Kiobel617) shares many characteristics with the act of state doctrine, such that they often are raised together.

618 Comity encompasses 

“the spirit of cooperation in which a domestic tribunal approaches the 

resolution of cases touching the laws and interests of other sovereign 

states.”619

In Ungaro-Benages v. Dresdner Bank AG, the Eleventh Circuit analyzed comity in an ATS case against German banks involving claims of 

Nazi-era property expropriation.620 Considerations relevant to the court’s 

analysis included “the strength of the United States’ interest in using a 

foreign forum, the strength of the foreign governments’ interests, and the 

adequacy of the alternative forum.”621 Because the German government 

had established a claims mechanism to provide compensation to victims, 

the Eleventh Circuit determined that comity principles justified its abstention from hearing the claims under federal law and the ATS.

 

616. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

617. See supra Part II.A.1.

618. See, e.g., Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 260–61 (2d Cir. 

2007).

619. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 543 

n.27 (1987).

620. Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004).

621. Id. at 1238. Note that comity applies retrospectively as well, in terms of respect 

granted to adjudicative results in foreign tribunals. Id. at 1238–39 (providing additional 

factors to assess foreign judgments).
V. Judicial Abstention

113

When the issue of judicial comity is raised in litigation, federal courts 

have discretion622 to balance the nature and extent of the potential conflict with a foreign state’s interests against the rights of the domestic litigants and the interests of the United States.623 “Absent true conflicts, a 

judgment from a foreign court, or parallel proceedings in a foreign forum, rarely have United States courts abstained from deciding the merits 

of a case on international comity grounds.”624 Some courts have required

defendants to demonstrate a “specific legislative or judicial statement of 

policy of a foreign state or court” that would be frustrated by the federal 

court’s retaining jurisdiction over the matter.625 An example would be a 

case in which the non-international claims at issue require the federal 

court to interpret and apply foreign law.626

Considerations of judicial comity do not apply to non-sovereigns, 

even when the entity in question exercises some similar functions. For 

example, even though the Palestine Liberation Organization exercised 

many functions normally handled by a foreign government, the principles of judicial comity did not preclude claims against it because it was 

not actually a foreign sovereign.627

 

622. See Cunard S.S. Co. v. Salen Reefer Services AB, 773 F.2d 452, 457 (2d Cir.

1985).

623. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798–99 (1993); Hilton v. 

Guyot, 159 U.S. 113, 163–64 (1895) (explaining that comity rests somewhere between 

obligatory conduct and simple goodwill and is “the recognition which one nation allows 

within its territory to the legislative, executive, or judicial acts of another nation, having 

due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws”).

624. Gross v. German Found. Indus. Initiative, 456 F.3d 363, 393 (3d Cir. 2006).

625. See Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 129 (E.D.N.Y. 2000).

626. See, e.g., Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 871 (7th Cir. 2015)

(considering comity issues as part of the public factor analysis in forum non conveniens

dismissal and holding that “[t]he application of foreign law—particularly that of a civil 

law system—favors dismissal in favor of a [foreign] forum . . . [because the foreign] court 

would be far better able to apply its own law than any United States court would be”).

627. See Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424, 439 (S.D.N.Y. 2004)

(noting that “comity developed as a principle generally applicable to certain interactions 

between sovereign states and governments that maintain some relations” and would be 

inapplicable to an entity not recognized by the executive branch).
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D. The State Secrets Doctrine

U.S. national security has emerged as an issue in some human rights 

cases in which the federal government has sought dismissal on the basis 

of the state secrets doctrine. This doctrine allows a court to exclude evidence from discovery or even to dismiss a case if the proceedings would 

reveal military or government secrets and threaten national security.628

The doctrine is a common law evidentiary rule, first recognized by the 

Supreme Court in 1953 in United States v. Reynolds, which provided a 

three-part test.

629

First, the governmental department or agency in control of the evidence must formally claim the state secrets privilege. In evaluating 

whether the claim is proper, the court may take note of special executive 

branch procedures governing the invocation of the doctrine.630

Second, considering “all the circumstances of the case . . . [the court 

must determine whether] there is a reasonable danger that compulsion of 

the evidence will expose military matters which, in the interest of national security, should not be divulged.”631

Third, the court must evaluate both the necessity of the privileged 

evidence and the availability of alternatives.632 Where “there is a strong 

showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the 

claim of privilege if . . . military secrets are at stake.”633 Evidence covered 

by the privilege must be excluded from discovery and all other proceed-

 

628. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1076 (9th Cir. 2010).

629. United States v. Reynolds, 345 U.S. 1, 7–9 (1953).

630. See Jeppesen Dataplan, 614 F.3d at 1077, 1090 (citing Memorandum from the 

Attorney General to the Heads of Executive Departments and Agencies on Policies and 

Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009), available 

at http://www.justice.gov/sites/default/files/opa/legacy/2009/09/23/state-secret-privileges.

pdf).

631. Reynolds, 345 U.S. at 7–9. For more guidance on this topic, see Robert Timothy 

Reagan, Keeping Government Secrets: A Pocket Guide to the State-Secrets Privilege, the 

Classified Information Procedures Act, and Classified Information Security Officers 

(Federal Judicial Center, 2d ed. 2013).

632. Reynolds, 345 U.S. at 11. The availability of alternative forms of evidence diminishes the necessity for accessing restricted materials. Id.

633. Id. at 11.
V. Judicial Abstention

115

ings in the case.634 Dismissal may be necessary if the secret evidence is 

indispensable to the plaintiff’s case or to an asserted defense635 or if “the 

subject matter of a case is so sensitive that there is no way it can be litigated without risking national secrets.”636

The federal government, for example, asserted the state secrets privilege in three cases arising out of the CIA’s “extraordinary rendition” program. The first case, Arar v. Ashcroft, was filed in 2004 on behalf of a dual 

Canadian and Syrian citizen against former U.S. Attorney General John 

Ashcroft and sixteen other government and law enforcement officials.637

Arar alleged TVPA violations after he was mistakenly identified as part of 

al-Qaeda, detained and interrogated in New York City, and transferred to 

Jordan and later Syria.638

The government and individual defendants moved to dismiss the 

case on multiple grounds, including the state secrets privilege.639 Although the district court dismissed because the plaintiff failed to assert a 

proper claim under the TVPA, it specifically noted the “serious nationalsecurity and foreign policy issues at stake”640 and stated that “the need for 

much secrecy can hardly be doubted.”641 The Second Circuit affirmed,642

also noting that state secrets were a “further special factor”643 in the case 

that served as “a reminder of the undisputed fact that the claims under 

consideration involve significant national security decisions made in 

consultation with several foreign powers.”644 The panel decision was vacated following a decision en banc in 2009, in which the court affirmed 

 

634. Id. at 10–11.

635. See, e.g., Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).

636. In re Sealed Case, 494 F.3d 139, 153 (D.C. Cir. 2007). The doctrine applies more 

narrowly in criminal proceedings than in civil human rights cases. See El-Masri v. United 

States, 479 F.3d 296, 313 n.7 (4th Cir. 2007) (“[T]he Executive’s authority to protect [state 

secrets] is much broader in civil matters than in criminal prosecutions.”).

637. Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006), vacated on other grounds,

585 F.3d 559 (2d Cir. 2009) (en banc).

638. Id. at 253–55.

639. Id. at 287.

640. Id. at 286–87.

641. Id. at 281.

642. Arar v. Ashcroft, 532 F.3d 157, 181 (2d Cir. 2008), vacated on other grounds, 585 

F.3d 559 (2d Cir. 2009) (en banc).

643. Id. at 183.

644. Id.
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dismissal based on pleading defects.645 The Second Circuit declined to 

reach the state secrets question but recognized in dictum that lawsuits 

like Arar’s “unavoidably . . . probe[] government secrets.”646

A subsequent ATS case with state secret implications involved both 

public and private parties. In El-Masri v. Tenet, a German citizen of Lebanese origin brought suit against former CIA Director George Tenet, 

three corporations that either owned or operated airplanes allegedly used 

in a CIA rendition program, and twenty other CIA and corporate officials.647 El-Masri alleged that he was mistakenly identified as part of alQaeda after his arrest in Europe and that he was subsequently rendered 

to Afghanistan, where he was arbitrarily detained for an extended period 

and subjected to torture and cruel, inhuman, and degrading treatment.648

Following the government’s motion to dismiss based on state secrets, 

El-Masri argued that the facts of his case had become public and that he 

could prove his case without classified materials.

649 The district court dismissed the case, resting its decision squarely on the state secrets doctrine.650 Although the court found that “special procedures, such as clearing defense counsel for access to classified information . . . have been 

used effectively . . . in other cases, . . . . [s]uch procedures are plainly ineffective where, as here, the entire aim of the suit is to prove the existence 

of state secrets.”651 The Fourth Circuit affirmed, rejecting El-Masri’s argument that the case should proceed with the court reviewing state secrets evidence in camera, requiring counsel to obtain security clearances 

and execute nondisclosure agreements, and conducting a closed trial.652

A third states secrets case emerging from the CIA rendition program 

involved only private parties. In Mohamed v. Jeppesen Dataplan, Inc.,

 

645. Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009) (en banc).

646. Id.

647. El-Masri v. Tenet, 437 F. Supp. 2d 530, 532–34 (E.D. Va. 2006).

648. Id. at 535.

649. Id.

650. Id. at 541.

651. Id. at 539.

652. El-Masri v. Tenet, 479 F.3d 296, 311 (4th Cir. 2007). See also United States v. 

Reynolds, 345 U.S. 1, 9–11 (1953) (although the judge’s control over proceedings “cannot 

be abdicated to the caprice of executive officers [, the court] should not jeopardize the 

security which the privilege is meant to protect by insisting upon an examination of the 

evidence, even by the judge alone, in chambers”).
V. Judicial Abstention

117

ATS claims were brought against a Boeing subsidiary by five men allegedly transported on “torture flights” arranged by Jeppesen to Egypt, 

Morocco, and Afghanistan.653 The claimants alleged that they were 

harshly interrogated, subjected to enforced disappearances, and tortured 

while in foreign custody.654 Although no U.S. officials or agencies were 

sued, the district court granted the government’s motion to intervene.

The Ninth Circuit ultimately dismissed the case on the basis of the 

state secrets doctrine, even though the case involved only claims asserted 

against private parties (rather than government officials). The court determined that there was “no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.”655

Even if “plaintiffs could [theoretically] establish their entire case solely 

through non-privileged evidence . . . any effort by Jeppesen to defend 

would unjustifiably risk disclosure of state secrets.”656 The sensitive nature of the case was such that the protective mechanisms normally available to the court would not be sufficient.657

 

653. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073–75 (9th Cir. 2010).

Plaintiffs submitted affidavits from a former employee alleging that a senior Jeppesen 

official referenced the program as the “torture flights” or “spook flights.” Id. at 1095–96.

654. Id. at 1073–76.

655. Id. at 1087.

656. Id. at 1090.

657. Id. at 1089 (holding that “the risk of disclosure that further proceedings would 

create could not be averted [even] through the use of devices such as protective orders or 

restrictions on testimony”).

119

VI. Enforcement of Remedies

For successful individual human rights plaintiffs, courts have allowed 

damage awards to compensate for both physical and emotional suffering, 

as well as punitive damages.658 When the human rights plaintiff is an organization, it is sufficient to establish that the injuries to the entity “are 

quantifiable and may be remedied by an award of monetary damages”659

Final judgments rendered in human rights cases may prove difficult 

to enforce, however. Human rights defendants often lack significant attachable assets located within the United States.660 Even when assets exist, 

they may be unreachable for other reasons. As noted previously, foreign 

states generally are immune from lawsuits in U.S. courts,

661 and cases 

against them are often dismissed in the early stages. But even when a foreign state has defaulted or failed to defend the case, certain types of foreign government property are immune from attachment.

662 This FSIAgranted immunity is subject to exceptions, however, as is the immunity 

of property belonging to designated state sponsors of terror.663 It also 

does not apply to property of a foreign government located outside of the 

United States.664

Valid judgments rendered against non-immune foreign defendants 

may ultimately prove uncollectible overseas as well. Some foreign courts 

 

658. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 780 (9th Cir. 1994) (awarding 

$1.2 billion in exemplary damages and $766 million in compensatory damages to 10,000 

claimants in class action case arising out of torture, summary executions, and enforced 

disappearances); Xuncax v. Gramajo, 886 F. Supp. 162, 198–202 (D. Mass. 1995) (awarding compensatory and punitive damages for summary executions; enforced disappearances; torture; and cruel, inhuman, and degrading punishment); Paul v. Arvil, 901 F. 

Supp. 330, 335–36 (S.D. Fla. 1994) (awarding compensatory and punitive damages for 

torture).

659. Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 325 (D. Mass. 2013).

660. A good example is the $4.5 billion damage award entered against former Bosnian Serb leader Radovan Karadzić. Jane Doe I v. Karadzic, No. 93-CIV-0878, Order of 

Aug. 28, 2001, 2001 WL 986545, at *1 (S.D.N.Y. 2001).

661. FSIA, 28 U.S.C. § 1604 (2012) (providing absolute immunity to foreign states 

when no FSIA exception applies).

662. Id. § 1609 (property of foreign states is immune from attachment and seizure 

unless a FSIA exception applies).

663. Id. § 1605A.

664. See Republic of Argentina v. NML Capital Ltd., 134 S. Ct. 2250, 2257–58 (2014).
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provide little, if any, assistance with the enforcement of final judgments.

At present, the United States is not a party to any bilateral or multilateral 

treaty addressing the enforcement of foreign judgments.

665 Some foreign 

courts review judgments rendered by U.S. courts with caution, especially 

if the case involves legal procedures that are unfamiliar in the local regime, such as punitive damages or jury verdicts, or if the litigation is 

based on conduct outside of U.S. borders.666 Final judgments in human 

rights cases rendered by U.S. courts thus may not result in tangible remuneration to plaintiffs for injuries sustained.

It also is worth noting that the executive branch has the authority to 

eliminate private causes of action for human rights violations entirely by

settling the claims of U.S. citizens through a treaty or an executive 

agreement.

667 In American Insurance Association v. Garamendi, for example, the Supreme Court addressed whether U.S. foreign policy interests preempted the enforcement of a California law that required insurance companies to disclose certain Holocaust-era information to state 

 

665. See, e.g., Gabbanelli Accordions & Imps., L.L.C. v. Ditta Gabbanelli Ubaldo Di 

Elio Gabbanelli, 575 F.3d 693, 696–97 (9th Cir. 2009) (“[B]ecause the United States is not 

a signatory to any treaty governing recognition of foreign judgments, the significance of 

the foreign judgment will depend on a variety of other considerations . . . having to do 

with the reliability of the foreign proceeding for determining the parties’ rights.”) (internal citations omitted). At the time of this writing, the United States has signed but not 

ratified the Hague Choice of Court Convention, which does contain provisions on the 

recognition of foreign judgments. See Hague Convention on Private International Law, 

Convention on Choice of Court Agreements, June 30, 2005, 44 I.L.M. 1294.

666. See, e.g., Ansari v. New York Univ., 179 F.R.D. 112, 116–17 (S.D.N.Y. 1998)

(noting that foreign courts may not recognize the preclusive effect of “opt-out” class action resolutions). U.S. courts apply similar scrutiny to foreign judgments. See, e.g., Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014) (issuing permanent injunction against the enforcement of an Ecuadorian court’s $18 billion damage award against 

U.S. energy companies for allegedly contaminating the Amazon rainforest on the grounds 

that the judgment was obtained by fraud on the Ecuadorian court by the plaintiffs and 

their lawyers).

667. Dames & Moore v. Regan, 453 U.S. 654, 688 (1981) (discussing treaty negotiations with Iran as part of the Algiers Accords of 1980 and holding that “where, as here, 

the settlement of claims has been determined to be a necessary incident to the resolution 

of a major foreign policy dispute between our country and another, and where, as here, 

we can conclude that Congress acquiesced in the President’s action, we are not prepared 

to say that the President lacks the power to settle such claims”).
VI. Enforcement of Remedies

121

officials as a condition of selling insurance in California.

668 A group of 

insurers challenged the measure, arguing that it interfered with matters 

resolved previously through a Holocaust insurance claims commission 

sanctioned by the executive branch.

California’s insurance disclosure statute was deemed preempted because it interfered with the President’s authority and discretion in the 

foreign policy arena.

669 In its ruling, the Supreme Court discussed the 

extensive powers granted to the President in matters of foreign affairs, 

including the authority to reach executive agreements with other nations.

The Court determined that the President had the power to settle private 

claims in order to remove “sources of friction” that might remain after 

the cessation of hostilities or war.670

 

668. American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414–17 (2003).

669. Id. at 420.

670. Id. (citing United States v. Pink, 315 U.S. 203, 225 (1942)).

123

VII. Active Case Management and

Human Rights Cases

Given the transnational elements, the complexity of substantive claims, 

and potentially sensitive questions of immunity and other foreign relations matters, it often will prove useful for courts hearing human rights

cases to employ active case-management strategies.

671

Apart from facilitating the integration of human rights cases into 

already crowded dockets, active case management of discovery and motion practice helps to ensure that considerations unique to human rights 

cases can be addressed from the outset. It also facilitates the resolution of 

potentially dispositive issues early in the litigation, thereby narrowing the 

matters in dispute prior to trial.

Issues that might be resolved by active case management include 

1. territorial limitations on ATS claims under Kiobel;

672

2. personal jurisdiction over necessary parties;

3. the viability of substantive ATS claims under Sosa;

673

4. factual pleading sufficiency under Iqbal;

674

5. immunity under FSIA675 or common law; and

6. questions of judicial abstention.

Addressing these issues early on may lead to the dismissal of parties, the

narrowing of disputed claims, or both, thereby simplifying merits proceedings down the line. In appropriate cases, the court may want to consider conducting separate trials on certain claims or disputed matters, 

provided that the efficiencies of resolving predicate issues first outweigh 

the added time and expense of multiple rounds of discovery and trial 

proceedings.

 

671. See William W Schwarzer & Alan Hirsch, The Elements of Case Management: 

A Pocket Guide for Judges 1 (Federal Judicial Center, 2d ed. 2006) (“A small amount of a 

judge’s time devoted to case management early on in a case can save vast amounts of time 

later on.”).

672. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

673. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

674. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

675. FSIA, 28 U.S.C. § 1605 (2012).
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Active case management also serves the purpose of ensuring that the 

parties and counsel are familiar with the major issues that are likely to 

arise in human rights cases. Despite the primary obligations of the parties 

to educate the court on the factual details and applicable law of their case, 

it remains entirely possible that counsel (who may include plaintiff’s personal injury attorneys, corporate litigators, in-house lawyers, and other 

non-specialists) may not be familiar with the full range of issues involved 

in human rights litigation, many of which are sui generis. The court 

therefore may find it helpful to provide a structure to address the major 

issues that are likely to arise.

The model order set out in Appendix C may prove useful for this 

purpose. It sets forth a template for structuring early proceedings and 

includes an optional special form for the mandatory joint statement of 

the parties contemplated by the order. The model order is structured to 

enable the court to take early control over the proceedings and to require 

the parties to focus on the unique issues that tend to arise in human 

rights cases. It also offers a timeline for discovery and other pretrial 

events.

As with other federal cases, the model order requires counsel to confer prior to the initial scheduling conference and—to the extent possible—reach consensus on a statement setting forth a joint litigation plan 

that addresses all relevant issues. In addition to the matters normally required under Rules 16(b), 16(c), and 26(f), the model joint statement encompasses special issues that arise in human rights cases. Note that the 

order setting the initial pretrial conference requires attendance by senior 

counsel with genuine authority to plan the conduct of the case—not a 

junior lawyer or colleague asked to “cover” the meeting. It also requires 

parties to state their positions on whether the appointment of a federal 

magistrate judge or special master may be useful for purposes of 

discovery, fact-finding, or other aspects of the case.

An important issue for the court to learn about early on is the existence of any related proceedings arising out of the same transaction, 

event, or occurrence that gave rise to the case before the court. The 

model order requires the parties to disclose this information and to supplement it when new details of related civil or criminal proceedings become available. 

Finally, the court may find it useful to require the parties to supplement their joint statement as new parties are joined or existing parties are 
VII. Active Case Management and Human Rights Cases

125

dismissed, as well as at other stages of the litigation. To ensure clarity, the 

template form accompanying the model order in Appendix C suggests 

dating each joint statement prominently in the caption.676

 

676. If the case warrants such treatment, the court also may want to include in its 

initial case-management order some or all of the additional considerations encompassed 

by the model scheduling order set forth in the Manual for Complex Litigation, Fourth

(2004). See MCL Form 40.21.

127

VIII. Resources—Table of Appendices

As discussed above, human rights cases often raise many complex substantive and procedural questions. This guide, while intended to cover all 

major issues, is by no means a substitute for additional research and consideration of specific matters arising in a particular case. To assist judges

in that process, the following research references and other additional 

resources are provided in the appendices to this guide.

1. Appendix A: Major International Human Rights Instruments, 129

• Human Rights Treaties Ratified by the United States, 129

• Human Rights Treaties Signed But Not Yet Ratified by the 

United States, 132

2. Appendix B: Selected Cases—Actionable Conduct Under the 

Alien Tort Statute (ATS), 135

• Cases Finding a Right of Action Under the ATS, 135

• Cases Finding No Right of Action Under the ATS, 136

3. Appendix C: Model Order on Scheduling and Procedure in Human Rights Cases (with Joint Statement Form), 139

4. Appendix D: Federal Statutes (Excerpts), 151

• Alien Tort Claims Act, 28 U.S.C. § 1350, 151

• Torture Victim Protection Act, 28 U.S.C. § 1350 (note), 151

• Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333, 153

• William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. § 1595, 155

• Terrorism Exception to the Jurisdictional Immunity of a Foreign State, 28 U.S.C. § 1605A, 156

5. Appendix E: Research References, 159

• Online Resources, 159

• Restatement (Third) of Foreign Relations Law, 159

• American Law Reports, 159

• Books and Reports, 160

129

Appendix A. Major International Human 

Rights Instruments

Human Rights Treaties Ratified by the United States

Convention Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment, G.A. Res. 39/46 [annex, 39 U.N. GAOR Supp. 

(No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 

1987 (CAT) (ratified).

Notes: Treaty is not self-executing; implementing legislation was adopted 

with respect to the obligations imposed by article 5 concerning jurisdiction over extraterritorial acts of torture by United States citizens and by 

others “found” in the United States whom it does not extradite. In addition, the obligations of article 3 (“non-refoulment”) have been effectively 

implemented through federal administrative process and procedure and 

regulations. See 22 C.F.R. Parts 3, 103, 208, 235, 238, 240, 241, and 253, 

reprinted in 64 Fed. Reg. 33 at 8478–96 (Feb. 19, 1999) (INS regulations); 

22 C.F.R. Part 95, reprinted in 64 Fed. Reg. 38 at 9435–37 (Feb. 26, 1999).

Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1948), entered into force Jan. 12, 1951 (Genocide 

Convention) (ratified).

Notes: Treaty is not self-executing; implemented through Genocide Convention Implementation Act of 1987, 18 U.S.C. § 1091.

Geneva Convention for the Amelioration of the Condition of the 

Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31 (1949), 

entered into force Oct. 21, 1950 (Geneva Convention I) (ratified).

Notes: Treaty is not self-executing; certain grave breaches criminalized in 

War Crimes Act of 1996, 18 U.S.C. § 2441.

Geneva Convention for the Amelioration of the Condition of Wounded, 

Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85 

(1949), entered into force Oct. 21, 1950 (Geneva Convention II) (ratified).

Notes: Treaty is not self-executing; certain grave breaches criminalized in 

War Crimes Act of 1996, 18 U.S.C. § 2441.
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Geneva Convention Relative to the Protection of Civilian Persons in 

Time of War, 75 U.N.T.S. 287 (1949), entered into force Oct. 21, 1950 

(Geneva Convention IV) (ratified).

Notes: Treaty is not self-executing; certain grave breaches criminalized in 

War Crimes Act of 1996, 18 U.S.C. § 2441.

Geneva Convention Relative to the Treatment of Prisoners of War, 75 

U.N.T.S. 135 (1949), entered into force Oct. 21, 1950 (Geneva Convention III) (ratified).

Notes: Treaty is not self-executing; certain grave breaches criminalized in 

War Crimes Act of 1996, 18 U.S.C. § 2441.

International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) 

at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 

4, 1969 (CERD) (ratified).

Notes: Treaty is not self-executing; no implementing legislation.

International Covenant on Civil and Political Rights, G.A. Res. 2200A 

(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 

999 U.N.T.S. 171, entered into force Mar. 23, 1976 (ICCPR) (ratified).

Notes: Treaty is not self-executing; no implementing legislation. See 138 

Cong. Rec. 8068 (1992), S. Exec. Rep. No. 102–23, 102d Cong., 2d Sess. 

(1992). See also Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) (“Several times, indeed, the Senate has expressly declined to give the federal 

courts the task of interpreting and applying international human rights 

law, as when its ratification of the International Covenant on Civil and 

Political Rights declared that the substantive provisions of the document 

were not self-executing.” (citing 138 Cong. Rec. 8068, 8071 (1992)).

Optional Protocol to the Convention on the Rights of the Child on the 

Involvement of Children in Armed Conflicts, G.A. Res. 54/263, Annex I, 

54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), 

entered into force Feb. 12, 2002 (ratified).

Notes: Protocol is not self-executing; no implementing legislation.
Appendix A. Major International Human Rights Instruments 

131

Optional Protocol to the Convention on the Rights of the Child on the 

Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 

54/263, Annex II, 54 U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49, 

Vol. III (2000), entered into force Jan. 18, 2002 (ratified).

Notes: Protocol is not self-executing; no implementing legislation.

Protocol III Additional to the Geneva Conventions of 12 August 1949, 

and Relating to the Adoption of an Additional Distinctive Emblem, 2404 

U.N.T.S. 261 (2005), entered into force Sept. 8, 2007 (ratified).

Notes: Protocol is not self-executing; no implementing legislation. See

U.S. Senate Treaty Document No. 109-10, 109th Congress, 2d Sess. (Secretary of State’s transmittal letter of June 12, 2006 noting that implementing legislation would be required for Protocol III).

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, Annex 

II, U.N. Doc A/RES/55/25/Annex II (Nov. 15, 2000), entered into force 

Dec. 25, 2003 (ratified).

Notes: Treaty is not self-executing; no implementing legislation. (See 

U.S. Reservation No. 1: “The United States of America reserves the right 

not to apply in part the obligation set forth in Article 15, paragraph 1(b) 

. . . with respect to the offenses established in the Trafficking Protocol.

The United States does not provide for plenary jurisdiction over offenses 

that are committed on board ships flying its flag or aircraft registered 

under its laws . . . . Accordingly, the United States will implement paragraph 1(b) of the Convention to the extent provided for under its federal 

law.”). The Protocol was referenced with support in a Congressional Resolution. See H. Res. 508, Dec. 20, 2011 (“Supporting the goals and ideals 

of International Day for the Abolition of Slavery, recognizing the tenth 

anniversary of the adoption by the United Nations of the Protocol to 

Prevent, Suppress and Punish Trafficking in Persons, Especially Women 

and Children, Supplementing the United Nations Convention against 

Transnational Organized Crime, and commending the efforts of modern 

day abolitionists following in the tradition of Frederick Douglass.”).
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Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (1966), entered into force Oct. 4, 1967 (ratified).

Notes: Protocol is not self-executing; implemented through the Refugee 

Act of 1980. See Al-Fara v. Gonzales, 404 F.3d 733, 742–43 (3d Cir. 2005) 

(“The United States is a signatory to the 1967 United Nations Protocol 

Relating to the Status of Refugees (‘1967 Protocol’), which incorporated 

the 1951 Convention. The Attorney General implemented regulations to 

comply with its terms. In 1980, Congress amended the INA through 

passing the Refugee Act, which brought the domestic laws of the United 

States into conformity with its treaty obligations under the 1967 Protocol. The 1967 Protocol is not self-executing, nor does it confer any rights 

beyond those granted by implementing domestic legislation.”). 

Human Rights Treaties Signed But Not Yet Ratified by the 

United States

Convention on the Elimination of All Forms of Discrimination Against 

Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. No. 46, at 193, U.N. 

Doc. A/34/46 (entered into force Sept. 3, 1981) (CEDAW) (signed, not 

ratified).

Convention on the Rights of the Child, G.A. Res. 44/25, annex, 44 U.N. 

GAOR Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989) (entered into 

force Sept. 2, 1990) (CRC) (signed, not ratified).

Inter-American Convention on Human Rights, 1144 U.N.T.S. 123 (1969) 

(entered into force July 18, 1978) (IACHR) (signed, not ratified).

International Covenant on Economic, Social and Cultural Rights, G.A. 

Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16, at 49, U.N. Doc. A/6316 

(1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) (ICESCR) 

(signed, not ratified).

International Convention on the Protection and Promotion of the Rights 

and Dignity of Persons with Disabilities, G.A. Res. 61/106, Annex I, U.N. 

GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (2006) (entered 

into force May 3, 2008) (signed, not ratified).
Appendix A. Major International Human Rights Instruments 

133

Protocol I Additional to the Geneva Conventions of 12 August 1949, and 

Relating to the Protection of Victims of International Armed Conflicts,

1125 U.N.T.S. 3 (1977) (entered into force Dec. 7, 1978) (signed, not 

ratified).

Protocol II Additional to the Geneva Conventions of 12 August 1949, 

and Relating to the Protection of Victims of Non-International Armed 

Conflicts, 1125 U.N.T.S. 609 (1977) (entered into force Dec. 7, 1978)

(signed, not ratified).

Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90

(1998) (entered into force July 1, 2002) (ICC) (signed, not ratified; subsequent to signature the United States announced that it “does not intend 

to become a party to the treaty,” and that “accordingly, the United States 

has no legal obligations arising from its signature”).

135

Appendix B. Selected Cases—Actionable Conduct

Under the Alien Tort Statute (ATS)

Cases Finding a Right of Action Under the ATS

Aircraft hijacking. In re Terrorist Attacks on Sept. 11, 2001, 392 F. Supp. 

2d 539 (S.D.N.Y. 2005).

Conspiracy with attorney and judge to jail plaintiff in miserable and lifethreatening conditions until favorable settlement could be extorted.

Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078 (S.D. Fla. 1997) (preSosa case).

Extrajudicial killing; crimes against humanity; and cruel, inhuman, or 

degrading treatment or punishment. Cabello v. Fernández-Larios, 402 

F.3d 1148 (11th Cir. 2005).

Forced labor and human trafficking. Rodriguez Licea v. Curacao Drydock 

Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008).

Forcing children as young as six to perform heavy, hazardous labor. Roe 

v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007).

Harmful physical effects and medical problems caused by the aerial fumigation of drug farms. Arias v. Dyncorp, 517 F. Supp. 2d 221 (D.D.C. 

2007).

Human trafficking. Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 

(S.D. Tex. 2009).

Murder, rape, forced impregnation, and torture. Kadic v. Karadžić, 70 

F.3d 232 (2d Cir. 1995) (pre-Sosa case).

Murder of union leaders as an extrajudicial killing and violation of rights 

to associate and organize. Estate of Rodriquez v. Drummond Co., 256 F. 

Supp. 2d 1250 (N.D. Ala. 2003) (pre-Sosa case).

Nonconsensual medical experimentation. Abdullahi v. Pfizer, Inc., 562 

F.3d 163 (2d Cir. 2009).

Participation in slave trading and benefiting from forced labor. Doe v. 

Unocal Corp., 248 F.3d 915 (9th Cir. 2001) (pre-Sosa case).
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Plunder of private property that deprived members of the Jewish community in France of the means of financing their escape, thereby facilitating Nazi genocide. Bodner v. Banque Paribas, 114 F. Supp. 2d 117 

(E.D.N.Y. 2000) (pre-Sosa case).

Torture, prolonged arbitrary detention, and summary execution. Forti v. 

Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (pre-Sosa case) (superseded on other grounds, 281 F.3d 1004 (9th Cir. 2002)).

Violation of rights of safe navigation and acts of piracy on the high seas.

Institute of Cetacean Research v. Sea Shepherd Conservation Society, No. 

C11-2043-JLR, 2015 WL 9308296, at *9 (W.D. Wash. Dec. 21, 2015) 

(citing Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940 (9th Cir. 2013) (reinstating ATS claims for acts of piracy 

committed on the high seas)).

War crimes and other violations of international humanitarian law.

Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995) (approving ATS jurisdiction over war crimes).

Cases Finding No Right of Action Under the ATS

False imprisonment, arbitrary detention for five months, and handcuffing such that plaintiff was required to stand for hours. Chowdhury v. 

WorldTel Bangladesh Holding, Ltd., 588 F. Supp. 2d 375 (E.D.N.Y. 2008), 

rev’d on other grounds by Chowdhury v. WorldTel Bangladesh Holding, 

Ltd., 746 F.3d 42 (2d Cir. 2014) (post-Kiobel case reversing jury verdict 

on surviving ATS claims based on extraterritoriality).

Arbitrary detention and cruel, inhuman, and degrading treatment or 

punishment of minor arising from altercation with city police officer outside club. Lopez v. Richardson, 647 F. Supp. 2d 1356 (N.D. Ga. 2009).

Arrest and detention by Mexican authorities under apparently valid U.S. 

warrant. Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998) 

(pre-Sosa case).

Brief unlawful detention prior to transfer to lawful authorities. Sosa v. 

Alvarez-Machain, 542 U.S. 692 (2004).
Appendix B. Selected Cases—Actionable Conduct Under the Alien Tort Statute 

137

Conspiracy to commit torture unsupported by factual basis for claims.

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) (abrogated 

by Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012)); Beanal v. 

Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999).

“Constructive” expulsion from homeland arising out of government and 

military abuse. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) 

(pre-Sosa case).

Cross-border parental child abduction by an individual with full guardianship or custody. Taveras v. Taveras, 477 F.3d 767 (6th Cir. 2007).

Denial of free speech. De Wit v. KLM Royal Dutch Airlines, N.V., 570 F. 

Supp. 613 (S.D.N.Y. 1983) (pre-Sosa case).

Denying child custody to grandparents in favor of foster parents. Huynh 

Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978) (pre-Sosa case).

Environmental pollution from mining operations leading to health 

problems. Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 

2003).

Exportation of harmful pollutants. Amlon Metals, Inc. v. FMC Corp., 775 

F. Supp. 668 (S.D.N.Y. 1991) (pre-Sosa case).

False arrest. Mora v. New York, 524 F.3d 183 (2d Cir. 2008). 

Fraud, unjust enrichment, misrepresentation, conversion, and other 

commercial claims. Arndt v. UBS AG, 342 F. Supp. 2d 132 (E.D.N.Y. 

2004).

General violations of environmental treaties and agreements. Beanal v. 

Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999) (pre-Sosa case).

Governmental takings of its own citizens’ property. Guinto v. Marcos, 

654 F. Supp. 276 (S.D. Cal. 1986) (pre-Sosa case).

Intentional infliction of emotional distress. Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005).
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Keeping workers on Liberian rubber plantation through fear, ignorance, 

and poverty, absent allegations that workers were unpaid or physically 

forced to work. John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. 

Ind. 2007).

Murder perpetrated by a drunk government security officer. In re Xe Services Alien Tort Litigation, 665 F. Supp. 2d 569 (E.D. Va. 2009).

Negligence causing death or personal injury. Jones v. Petty Ray Geophysical Geosource, Inc., 722 F. Supp. 343 (S.D. Tex. 1989); B.T. Shanker Hedge 

v. British Airways, No. 82 C 1410, 1982 U.S. Dist. LEXIS 16469 (N.D. Ill. 

Dec. 27, 1982); Benjamins v. British European Airways, 572 F.2d 913 (2d. 

Cir. 1978); Lopes v. Reederei Richard Schroder, 225 F. Supp. 292 (E.D. Pa. 

1963) (pre-Sosa cases).

Prisoner mistreatment, not rising to the level of torture. Diaz v. United 

States, 373 F. App’x 947 (11th Cir. 2010) (case not selected for publication in the Federal Reporter).

Reputational damage and defamation. Akbar v. New York Magazine Co., 

490 F. Supp. 60 (D.D.C. 1980); De Wit v. KLM Royal Dutch Airlines, 

N.V., 570 F. Supp. 613 (S.D.N.Y. 1983) (pre-Sosa cases).

Single murder committed by private actors, in the course of an ongoing 

armed conflict, without demonstrating a serious breach of Geneva Conventions or other serious violation of international law. Estate of Amergi 

v. Palestinian Authority, 611 F.3d 1350 (11th Cir. 2010).

Statutory rape of a 15-year-old girl by the man she was forced to marry.

Cisneros v. Aragon, 485 F.3d 1226 (10th Cir. 2007).

Threat of future state-sponsored extrajudicial killing. Al-Aulaqi v. 

Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).

Use of chemicals as defoliants during the Vietnam War. Vietnam Association for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d 

Cir. 2008).

Violations of United Nations General Assembly resolutions. Flores v. 

Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) (pre-Sosa case). 
139

Appendix C: Model Order on Scheduling and 

Procedure in Human Rights Cases 

(with Joint Statement Form)

As they do in all cases, federal judges hearing human rights claims must 

use their best discretion in docket management and in crafting the initial 

case management order that governs the case. On one hand, it can be 

useful to develop a comprehensive sketch of key factual and legal issues 

and to address their resolution from the outset in the case management 

order. On the other hand, a request for information about potential issues should not be taken as a jurisdictional road map for the defense or 

an unwarranted invitation to create hurdles for the opposing party.

The following is a model case management order for human rights 

cases.677 Judges must balance the various interests involved—including 

the need to bring the case to a final resolution as expeditiously as possible—in light of the claims at issue, the location of evidence and witnesses, 

the parties and their resources, and other factors described in the federal 

rules and in case law. The mere fact that particular issues appear in the 

model order that follows (see, e.g., paragraph 6) does not mean that the 

parties are entitled to extensive motion practice or discovery on those 

issues in any given case.

 

677. Some of the content of the model order and the attached joint statement form

was adapted from MCL Form 40.1 and Local Rules 16.1, 16.3, and 16.4 of the District of 

Massachusetts, as well as that district’s special rules for patent litigation (General Order 

08-3).
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MODEL ORDER

Order of the Honorable _________________ on Scheduling and 

Pretrial Procedures in Human Rights Cases

Pursuant to Fed. R. Civ. P. 16, the court hereby adopts the following 

scheduling requirements and procedures for cases involving allegations 

of human rights violations. This Order has been developed to help provide certainty and efficiency in such cases and is intended to be neutral as 

between plaintiffs and defendants. The requirements herein are supplemental to the parties’ obligations under Fed. R. Civ. P. 11, 16, and 26 

[and Local Rule ___].

1. General Applicability. In light of one or more claims for relief 

pleaded pursuant to the following [strike out as appropriate]:

a. The Alien Tort Claims Act, 28 U.S.C. § 1350;

b. The Torture Victim Protection Act, 28 U.S.C. § 1350 (note);

c. The Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333;

d. The Trafficking Victims Protection Reauthorization Act, 18 

U.S.C. § 1595; and

e. The State Sponsors of Terrorism Exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7),

the procedures specified in this Order shall apply to this case.

2. Applicability in Other Cases. In its discretion, either upon the request of a party or on its own initiative, the court may apply some or 

all of the requirements of this Order to other cases before it that involve similar types of claims and issues to the statutory causes of action set forth above.

3. Scheduling Conference. Pursuant to Fed. R. Civ. P. 16 [and Local 

Rule ___], an initial scheduling conference shall be conducted by the 

court in each case to which this Order applies. This conference shall 

be attended either by lead trial counsel for each party or by another 

senior lawyer with direct and ongoing responsibility for the conduct 

of the case.
Appendix C. Model Order on Scheduling and Procedure in Human Rights Cases 

141

4. Obligation to Confer. Unless otherwise ordered by the court, counsel for all parties shall confer and reach agreement to the extent possible on the topics set forth in this Order and the matters contemplated by Fed. R. Civ. P. 16(b), 16(c), and 26(f) [and Local Rule ___].

Counsel are jointly responsible for arranging and conducting this 

meeting. The court strongly encourages counsel to confer in person, 

but should that prove impossible or impractical, counsel shall meet 

by telephone or videoconference. Communicating by writing, including fax, instant message, text, or e-mail, will not be sufficient 

without an actual meeting. This conference shall take place at least 

[twenty-eight (28)] days prior to the initial scheduling conference in 

the case for the purpose of discussing and preparing:

a. An agenda of matters to be discussed at the scheduling conference; and

b. A proposed pretrial schedule that includes a plan for discovery 

and that addresses the other pretrial matters set forth below.

5. Joint Statement of the Parties—Required Content. Unless otherwise ordered by the court, the parties shall file a joint statement not

later than [ten (10)] days before the initial scheduling conference.

The joint statement shall be based upon the best knowledge, information, and belief of the parties and their counsel following reasonable inquiry and due diligence appropriate to that stage of the litigation. The joint statement shall include the following:

a. A joint discovery plan scheduling the time and length for all discovery events. To the extent possible, this plan should account for 

the desirability of conducting phased discovery, with the first 

phase limited to developing information needed either for a realistic assessment of the case or for the court to decide potentially 

dispositive pretrial motions, and with the second phase directed at 

information needed to prepare for trial if the case does not 

terminate;

b. A proposed schedule for the filing of motions and other pretrial 

events;

c. The parties’ positions on other considerations deemed by the 

court to be potentially relevant to human rights cases, as set forth 

in paragraph 6 below;
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d. The parties’ positions on whether the case may be appropriate for 

early settlement negotiations, possible means of facilitating those 

negotiations, and what assistance may be appropriate for the court 

to provide (including reference of the case to another judicial 

officer or to a special master for settlement discussions);

e. The parties’ positions on whether the case may be appropriate for 

reference to alternative dispute resolution programs designated 

for use in the district court or that the court otherwise may make 

available, including, without limitation, mediation, minitrial or 

summary jury trial; and

f. The parties’ positions on whether the case may be appropriate for

reference to a U.S. magistrate judge or a special master for 

purposes of discovery, fact-finding, or other aspects of the case.

6. Joint Statement of the Parties—Additional Content. In addition to 

the requirements of paragraph [5] above, the parties shall set forth 

their respective positions on each of the following considerations:

a. Related Proceedings. Whether any civil or criminal proceeding 

relating to the same course of conduct, transaction, or occurrence 

at issue in the case is (i) currently pending; or (ii) likely to be 

brought in any federal or state court in the United States, in the 

courts of any foreign jurisdiction, or in any international judicial 

or arbitral forum. For each such action, the joint statement shall 

specify: the nature of the case (civil or criminal), the court or 

tribunal in question, the date of initial filing, the identity of the 

parties thereto, and the current status of the case. The parties shall 

timely supplement this statement when and as new information 

becomes available to them in the exercise of reasonable diligence.

b. Overseas Discovery. The extent to which evidence and witnesses 

are located outside the jurisdictional reach of the court, and 

whether discovery will be sought under The Hague Convention 

on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, through 

letters rogatory, or through other similar procedures. The parties 

also shall state whether they reasonably anticipate any difficulty in 

securing the cooperation of any foreign jurisdiction with respect 
Appendix C. Model Order on Scheduling and Procedure in Human Rights Cases 

143

to obtaining information, testimony, or documentary evidence in 

that state.

c. Choice of Law; Foreign and International Law. The jurisdiction(s) providing the sources of law applicable to the present dispute. If any party claims that the law of any foreign jurisdiction 

other than federal or state law of the United States governs any 

legal question in the case, the party shall state (i) the identity of 

the jurisdiction in question; (ii) the issue(s) on which such foreign 

or international law is alleged to be applicable; and (iii) the means 

by which the party intends to establish the content of that foreign 

or international law at or before trial.

d. Limitations Period. Whether any party claims that some or all of 

the causes of action in the case are subject to any statute of 

limitations that has expired, and whether the expiration of such 

limitations period has or should be tolled on equitable or other 

grounds.

e. Confidentiality. Whether any party will request that the court enter an order (i) protecting the confidentiality of information, 

testimony, or documents (including identifying information 

about parties and/or witnesses in the case); (ii) restricting public 

statements or commentary to the media by the parties or their 

counsel (“gag” order); or (iii) restricting public or media access to 

pleadings or case materials and/or limiting access to the courtroom when some or all proceedings are underway. If so, the parties shall reach agreement on confidentiality-related issues to the 

extent possible and shall submit a draft order to the court with 

their joint statement.

f. Rule 12(b)(6) Motions. Whether any party intends to file a motion for failure to state a claim under Fed. R. Civ. P. 12(b)(6), and 

if so, the specific grounds for the motion and why the defect alleged cannot be cured by amendment.
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g. Potential Grounds for Dismissal.

OPTION A

Whether any party reasonably claims that it is or may be entitled 

to dismissal based upon any of the following considerations:

i. Territorial limitations on the application of any federal statute under which claims for relief are asserted; 

ii. Immunity of foreign governments, agencies, and instrumentalities under the Foreign Sovereign Immunities Act;

iii. Other forms of statutory or common law immunity, such as 

head of state immunity, immunity of government officials, 

and diplomatic immunity;

iv. Lack of personal jurisdiction;

v. Defects in service of process that cannot be cured;

vi. Fed. R. Civ. P. 19(b) and claims that the court is unable to 

properly adjudicate the dispute in the absence of other parties that cannot be joined;

vii. Forum non conveniens; or

viii. Lack of standing to assert some or all of the grounds for relief 

claimed.

OPTION B

Whether any party reasonably claims that it is or may be entitled 

to dismissal, setting forth the basis of such claim for each ground 

the party asserts may be applicable.

h. Abstention. Whether any party will request the court to abstain 

from hearing the case on the grounds that the case presents a 

nonjusticiable political question, or based upon the act of state 

doctrine, considerations of international judicial comity, or other 

similar grounds.

i. Governmental Statements of Interest. Whether any party has requested or intends to request a statement of interest from the 

government of the United States or any foreign state with respect 

to the matters at issue in the case, as well whether any party will 

ask the court to make such requests in that regard.
Appendix C. Model Order on Scheduling and Procedure in Human Rights Cases 

145

OPTIONAL

j. Resolution of Claims as a Matter of Law; Separate Statements

on Preliminary Legal Issues. The parties shall use their best efforts to reach agreement as to (i) the critical factual and legal issues that are in dispute; and (ii) whether those contested issues are 

(or are not) amenable to summary judgment or other resolution 

by the court prior to trial. The parties will submit separately to the 

court brief written statements setting forth their current understanding of the facts involved in the litigation and the critical factual and legal issues in dispute. These statements will not be filed 

with the clerk, will not be binding, will not waive claims or defenses, [will be treated as confidential by all parties and may not 

be released to the public or the media], and may not be offered 

into evidence against a party in later proceedings in the case [or in 

any other judicial, arbitral, or administrative proceeding, unless 

otherwise ordered by the court].

7. Form of Joint Statement. To the extent that the parties agree that 

certain pretrial matters are (or are not) genuinely in dispute and/or 

on a proposed pretrial schedule, they shall so indicate in their joint 

statement. Where the parties disagree, they shall set forth separately 

the items on which they differ and indicate the nature of that difference. The purpose of the parties’ proposals shall be to advise the 

court of their best understanding of matters genuinely in dispute and 

the time required to accomplish specified pretrial steps. The parties’

proposed agenda for the scheduling conference and their proposed 

pretrial schedule shall be considered by the court as advisory only.

[To assist the parties and their counsel, a template for the joint statement is attached to this Order.]

8. Supplemental Joint Statements. Unless otherwise ordered by the 

court, within [thirty (30)] days of the dismissal of any party or the 

joinder of any new party to the case, and at such other times as directed by the court, all parties shall meet and confer as specified in 

this Order and shall file a revised joint statement. The revised joint 

statement shall be based upon the best knowledge, information, and 

belief of the parties and their counsel following reasonable inquiry 

and due diligence appropriate to that stage of the case.

[Joint Statement Form follows]
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Model Order

Joint Statement Form678

United States District Court

for the

<__________________> DISTRICT OF <__________________>

<Name(s) of plaintiff(s)>,

Plaintiff(s)

v.

<Name(s) of defendant(s)>,

Defendant(s)

)

)

)

)

)

)

)

)

)

)

Civil Action No. <Number>

Joint Statement Dated _____________ Pursuant to the 

Standing Order of the Honorable ________________ on 

Scheduling and Pretrial Procedures in Human Rights Cases

I. Participating Counsel. The following persons participated in a conference pursuant to Fed. R. Civ. P. 26(f) and the Standing Order of 

the Honorable __________ on Scheduling and Pretrial Procedures in 

Human Rights Cases on <Date> by <State the method of 

conferring>:

<Name(s)>, representing the <plaintiff(s)>

<Name(s)>, representing the <defendant(s)>

 

678. Adapted from Form 52: Report of the Parties Planning Meeting, Federal Rules 

of Civil Procedure and Form 2: Order for Rule 26(f) Planning Meeting and Rule 16(b) 

Scheduling Conference, Civil Litigation Management Manual (Judicial Conference of the 

U.S. 2001).
Appendix C. Model Order on Scheduling and Procedure in Human Rights Cases 

147

II. Initial Disclosures. The parties [have completed] [will complete by 

<Date>] the initial disclosures required by Rule 26(a)(1) [and Local 

Rule ___].

III. Discovery Plan. The parties propose the following discovery plan:

[Use separate paragraphs or subparagraphs if the parties disagree.]

a. Discovery will be needed on these subjects: [Describe].

b. Dates for commencing and completing discovery, including discovery to be commenced or completed before other discovery.

c. Need for and proposed means of obtaining discovery from nonparties outside the jurisdictional reach of the court.

d. Maximum number of interrogatories by each party to another 

party, along with the dates the answers are due.

e. Maximum number of requests for admission, along with the dates 

responses are due.

f. Maximum number of depositions by each party.

g. For foreign witnesses who are to be deposed in the United States, 

the proposed means of ensuring that the witness will have the 

necessary permission to travel to and enter the United States for 

purposes of providing deposition testimony.

h. Limits on the length of depositions, in hours.

i. Anticipated testimony of expert witnesses, dates for exchanging 

reports of expert witnesses, and whether depositions of experts 

will be needed.

j. Dates for supplementation under Rule 26(e).

IV. Required Considerations in Human Rights Cases

[Use separate paragraphs or subparagraphs if the parties disagree.]

a. Related civil and criminal proceedings

i. Case(s) currently pending

ii. Anticipated filings
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b. Overseas discovery

i. Hague Convention

ii. Letters rogatory or other procedures

c. Choice of Law

i. U.S. state or federal

ii. Foreign

iii. International

d. Statute of limitations; tolling

e. Confidentiality

i. Information, testimony, or documents

ii. Gag order—parties

iii. Restrictions on public/media access

1. Pleadings/case materials

2. Courtroom access

f. Rule 12(b)(6) (failure to state a claim)

g. Potential grounds upon which any party may seek dismissal

OPTIONAL

i. Territorial limitations on statutory causes of action

ii. Immunity

1. FSIA/Foreign states, agencies, and instrumentalities

2. Head of foreign state

3. U.S. government as party

4. U.S.—Current or former government officials

5. Foreign state—Current or former government officials

6. Diplomatic

iii. Personal jurisdiction

iv. Service of process

v. Rule 19 (indispensable parties)
Appendix C. Model Order on Scheduling and Procedure in Human Rights Cases 

149

vi. Forum non conveniens

vii. Standing

h. Abstention and Related Doctrines

OPTIONAL

i. Nonjusticiable political question 

ii. Act of state

iii. International comity

iv. Other prudential grounds

i. Requests for statements of interest from governments

i. U.S. government

1. Request(s) pending

2. Request(s) anticipated

ii. Foreign government

1. Request(s) pending

2. Request(s) anticipated

iii. Request(s) for involvement by the court in requesting statements of interest

j. Resolution of claims as a matter of law

V. Additional Items

[Use separate paragraphs or subparagraphs if the parties disagree.]

a. Requested dates for pretrial conferences.

b. Final dates for the plaintiff to amend pleadings or to join parties.

c. Final dates for the defendant to amend pleadings or to join 

parties.

d. Final dates to file dispositive motions.

e. State the prospects for settlement.

f. Identify any alternative dispute resolution procedures that may 

enhance settlement prospects.
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g. Final dates for submitting Rule 26(a)(3) witness lists, designations 

of witnesses whose testimony will be presented by deposition, and 

exhibit lists.

h. Final dates to file objections under Rule 26(a)(3).

i. Suggested trial date and estimate of trial length.

j. For trial witnesses who are not present in the United States, the 

proposed means of ensuring that the witness will have the necessary permission to travel to and enter the United States for purposes of providing trial testimony.

k. Potential involvement of U.S. magistrate and/or special master in 

the case.

l. Other matters.

Date: [Date] [Signature of each attorney or unrepresented 

party]

_______________________________________

[Printed name]

[Address]

[E-mail address]

[Telephone number]

[State Bar or License #]
151

Appendix D. Federal Statutes (Excerpts)

Alien Tort Claims Act, 28 U.S.C. § 1350

Alien’s action for tort

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.

(June 25, 1948, ch. 646, 62 Stat. 934)

Torture Victim Protection Act, 28 U.S.C. § 1350 (note)

Section 1. Short Title

This Act may be cited as the “Torture Victim Protection Act of 1991.”

Section 2. Establishment of Civil Action.

(a) Liability. An individual who, under actual or apparent authority, or 

color of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be liable 

for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative,

or to any person who may be a claimant in an action for wrongful death.

(b) Exhaustion of Remedies. A court shall decline to hear a claim under 

this section if the claimant has not exhausted adequate and available 

remedies in the place in which the conduct giving rise to the claim 

occurred.

(c) Statute of Limitations. No action shall be maintained under this section unless it is commenced within 10 years after the cause of action 

arose.

Section 3. Definitions.

(a) Extrajudicial Killing. For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a pre-
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vious judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable 

by civilized peoples. Such term, however, does not include any such 

killing that, under international law, is lawfully carried out under the 

authority of a foreign nation.

(b) Torture. For the purposes of this Act—

(1) the term “torture” means any act, directed against an individual 

in the offender’s custody or physical control, by which severe 

pain or suffering (other than pain or suffering arising only from 

or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such 

purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act 

that individual or a third person has committed or is suspected 

of having committed, intimidating or coercing that individual or 

a third person, or for any reason based on discrimination of any 

kind; and

(2) mental pain or suffering refers to prolonged mental harm caused 

by or resulting from—

(A) the intentional infliction or threatened infliction of severe 

physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the 

personality;

(C) the threat of imminent death; or

(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or 

other procedures calculated to disrupt profoundly the senses 

or personality.

Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73

(1992).
Appendix D. Federal Statutes (Excerpts)

153

Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333

18 U.S.C. § 2331 (Definitions)

As used in this chapter—

(1) the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a 

violation of the criminal laws of the United States or of any 

State, or that would be a criminal violation if committed 

within the jurisdiction of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation 

or coercion; or

(iii) to affect the conduct of a government by mass 

destruction, assassination, or kidnapping; 

and

(C) occur primarily outside the territorial jurisdiction of the 

United States, or transcend national boundaries in terms of 

the means by which they are accomplished, the persons they 

appear intended to intimidate or coerce, or the locale in 

which their perpetrators operate or seek asylum;

(2) the term “national of the United States” has the meaning given 

such term in section 101(a)(22) of the Immigration and 

Nationality Act;

(3) the term “person” means any individual or entity capable of 

holding a legal or beneficial interest in property;

(4) the term “act of war” means any act occurring in the course of—

(A) declared war;

(B) armed conflict, whether or not war has been declared, 

between two or more nations; 

or

(C) armed conflict between military forces of any origin; and
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(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of 

the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation 

or coercion; or

(iii) to affect the conduct of a government by mass 

destruction, assassination, or kidnapping; 

 and

(C) occur primarily within the territorial jurisdiction of the 

United States.

Anti-Terrorism Act of 1990, Pub. L. No. 102-572, 106 Stat. 4521 (as 

amended by the Act of Oct. 26, 2001, Pub. L. No. 107-56, 115 Stat. 376).

18 U.S.C. § 2333 (Civil Remedies)

(a) Action and Jurisdiction. Any national of the United States injured in 

his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue 

therefor in any appropriate district court of the United States and 

shall recover threefold the damages he or she sustains and the cost of 

the suit, including attorney’s fees.

(b) Estoppel Under United States Law. A final judgment or decree rendered in favor of the United States in any criminal proceeding under 

section 1116, 1201, 1203, or 2332 of this title or section 46314, 46502, 

46505, or 46506 of title 49 shall estop the defendant from denying the 

essential allegations of the criminal offense in any subsequent civil 

proceeding under this section.

(c) Estoppel Under Foreign Law. A final judgment or decree rendered in 

favor of any foreign state in any criminal proceeding shall, to the extent that such judgment or decree may be accorded full faith and 

credit under the law of the United States, estop the defendant from 
Appendix D. Federal Statutes (Excerpts)

155

denying the essential allegations of the criminal offense in any subsequent civil proceeding under this section.

Anti-Terrorism Act of 1990, Pub. L. No. 102-572, 106 Stat. 4522 (as 

amended by the Act of Oct. 31, 1994, Pub. L. No. 103-429, 108 Stat. 4377)

William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, 18 U.S.C. § 1595

18 U.S.C. § 1595 (Civil Remedy)

(a) An individual who is a victim of a violation of this chapter may bring 

a civil action against the perpetrator (or whoever knowingly benefits, 

financially or by receiving anything of value from participation in a 

venture which that person knew or should have known has engaged 

in an act in violation of this chapter) in an appropriate district court 

of the United States and may recover damages and reasonable attorney’s fees.

(b)(1) Any civil action filed under this section shall be stayed during the 

pendency of any criminal action arising out of the same occurrence 

in which the claimant is the victim.

(b)(2) In this subsection, a “criminal action” includes investigation and 

prosecution and is pending until final adjudication in the trial court.

William Wilberforce Trafficking Victims Protection Reauthorization Act 

of 2008, Pub. L. No. 110–457, 122 Stat. 5044 (codified with prior versions 

in scattered sections of 8 U.S.C., 18 U.S.C., 22 U.S.C., and 42 U.S.C.) 

(amending Trafficking Victims Protection Reauthorization Act of 2005, 

Pub. L. No. 109–164, 119 Stat. 3558 (amending Trafficking Victims 

Protection Reauthorization Act of 2003, Pub. L. No. 108–193, 117 Stat. 

2875 (amending Trafficking Victims Protection Act of 2000, Pub. L. No. 

106–386, 114 Stat. 1464))), as amended by Pub. L. No. 114-22, tit. I,

§ 120, May 29, 2015, 129 Stat. 247.
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Terrorism Exception to the Jurisdictional Immunity of a Foreign 

State, 28 U.S.C. § 1605A

(a) In General.

(1) No immunity. A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case 

not otherwise covered by this chapter in which money damages 

are sought against a foreign state for personal injury or death that 

was caused by an act of torture, extrajudicial killing, aircraft 

sabotage, hostage taking, or the provision of material support or 

resources for such an act if such act or provision of material 

support or resources is engaged in by an official, employee, or 

agent of such foreign state while acting within the scope of his or 

her office, employment, or agency.

(2) Claim heard. The court shall hear a claim under this section if—

(A)(i)(I) the foreign state was designated as a state sponsor of 

terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject 

to subclause (II), either remains so designated when the claim 

is filed under this section or was so designated within the 6-

month period before the claim is filed under this section; or 

(II) in the case of an action that is refiled under this section by 

reason of section 1083(c)(2)(A) of the National Defense 

Authorization Act for Fiscal Year 2008 or is filed under this 

section by reason of section 1083(c)(3) of that Act, the foreign 

state was designated as a state sponsor of terrorism when the 

original action or the related action under section 1605(a)(7) 

(as in effect before the enactment of this section) or section 589 

of the Foreign Operations, Export Financing, and Related 

Programs Appropriations Act, 1997 (as contained in section 

101(c) of division A of Public Law 104–208) was filed; 

(A)(ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred—

(I) a national of the United States; 

(II) a member of the armed forces; or 
Appendix D. Federal Statutes (Excerpts)

157

(III) otherwise an employee of the Government of the United 

States, or of an individual performing a contract awarded by 

the United States Government, acting within the scope of 

the employee’s employment; and 

(A)(iii) in a case in which the act occurred in the foreign state 

against which the claim has been brought, the claimant has 

afforded the foreign state a reasonable opportunity to arbitrate 

the claim in accordance with the accepted international rules 

of arbitration; or

(B) the act described in paragraph (1) is related to Case Number 

1:00CV03110 (EGS) in the United States District Court for the 

District of Columbia. 

(b) Limitations. An action may be brought or maintained under this 

section if the action is commenced, or a related action was commenced under section 1605 (a)(7) (before the date of the enactment 

of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104–208) not 

later than the latter of—

(1) 10 years after April 24, 1996; or 

(2) 10 years after the date on which the cause of action arose. 

(c) Private Right of Action. A foreign state that is or was a state sponsor 

of terrorism as described in subsection (a)(2)(A)(i), and any official, 

employee, or agent of that foreign state while acting within the scope 

of his or her office, employment, or agency, shall be liable to—

(1) a national of the United States, 

(2) a member of the armed forces, 

(3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States 

Government, acting within the scope of the employee’s employment, or 

(4) the legal representative of a person described in paragraph (1), 

(2), or (3), for personal injury or death caused by acts described in 

subsection (a)(1) of that foreign state, or of an official, employee, 

or agent of that foreign state, for which the courts of the United 
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States may maintain jurisdiction under this section for money 

damages. In any such action, damages may include economic 

damages, solatium, pain and suffering, and punitive damages. In 

any such action, a foreign state shall be vicariously liable for the 

acts of its officials, employees, or agents. 

(d) Additional Damages. After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable 

property loss, whether insured or uninsured, third party liability, and 

loss claims under life and property insurance policies, by reason of 

the same acts on which the action under subsection (c) is based. 

Act of Jan. 28, 2008, Pub. L. No. 110-181, div. A, tit. X, § 1083(a)(1), 122 

Stat. 338.
159

Appendix E: Research References

Online Resources

American Society of International Law, Electronic Information System for International Law, http://www.eisil.org/ (last visited Aug. 10, 2016).

American Society of International Law, Human Rights Research Guide, 

http://www.asil.org/sites/default/files/ERG_HUMRTS.pdf (last visited Aug. 

10, 2016).

University of Minnesota Human Rights Library, http://www1.umn.edu/

humanrts (last visited Aug. 10, 2016).

Restatement (Third) of Foreign Relations Law

Restatement (Third) of the Foreign Relations Law of the United States § 101

(1987) (International Law Defined).

Restatement (Third) of the Foreign Relations Law of the United States § 102 

(1987) (Sources of International Law).

Restatement (Third) of the Foreign Relations Law of the United States § 111 

(1987) (International Law and Agreements as Law of the United States).

Restatement (Third) of the Foreign Relations Law of the United States § 401 

(1987) (Categories of Jurisdiction).

Restatement (Third) of the Foreign Relations Law of the United States § 421 

(1987) (Jurisdiction to Adjudicate).

Restatement (Third) of the Foreign Relations Law of the United States § 701 

(1987) (Obligation to Respect Human Rights).

Restatement (Third) of the Foreign Relations Law of the United States § 702 

(1987) (Customary International Law of Human Rights).

Restatement (Third) of the Foreign Relations Law of the United States § 703 

(1987) (Remedies for Violation of Human Rights Obligations).

American Law Reports

George K. Chamberlin, Annotation, Exceptions to Jurisdictional Immunity of 

Foreign States and Their Property Under the Foreign Sovereign Immunities 

Act of 1976, 28 U.S.C.A. §§ 1602 et seq., 59 A.L.R. Fed. 99 (1982).

Kurtis A. Kemper, Annotation, Construction and Application of Alien Tort 

Statute (28 U.S.C.A. § 1350)—Tort in Violation of Law of Nations or Treaty 

of the United States, 64 A.L.R. Fed. 2d 417 (2012).

Donald T. Kramer, Annotation, Modern Status of the Act of State Doctrine, 12 

A.L.R. Fed. 707 (1972).
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Michael A. Rosenhouse, Annotation, State-Sponsored Terrorism Exception to 

Immunity of Foreign States and Their Property Under Foreign Sovereign 

Immunities Act of 1976, 28 U.S.C.A. § 1605(a)(7), 176 A.L.R. Fed. 1 (2002).

P. H. Vartanian, Annotation, Manner and Sufficiency of Pleading Foreign Law, 

134 A.L.R. 570 (1941).

Books and Reports

David J. Bederman, International Law: A Handbook for Judges (2003).

Benchbook on International Law (Diane Marie Amann ed., 2014), available at

http://www.asil.org/benchbook.

Jennifer K. Elsea, CRS Report for Congress, RL32118, The Alien Tort Statute: 

Legislative History and Executive Branch Views (2003) (pre-Sosa analysis).

Peter Henner, Human Rights and the Alien Tort Statute: Law, History and 

Analysis (2009).

Michael Koebele, Corporate Responsibility Under the Alien Tort Statute (2009).

Harold Koh, Transnational Litigation in United States Courts (2008).

David J. Levy, ed., International Litigation—Defending and Suing Foreign Parties in U.S. Federal Courts (2004).

Beth Stephens et al., International Human Rights Litigation in U.S. Courts (2d

ed. 2008).
161

Table of Authorities

Cases

Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009), 39, 42, 45, 85, 86

Abdullahi v. Pfizer, Inc., No. 01-CV-8118, 2005 WL 1870811 (S.D.N.Y. Aug. 9, 

2005), rev’d and remanded by 562 F.3d 163 (2d Cir. 2009), cert. denied, 130 S. 

Ct. 3541 (2010) (mem.), 86

Abecassis v. Wyatt, 704 F. Supp. 2d 623 (S.D. Tex. 2010), 67

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012), 13, 17, 41, 59

Abiola v. Abubakar, 267 F. Supp. 2d 907 (N.D. Ill. 2003), 60

Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495 (S.D.N.Y. 2005), 85

Adhikari v. Daoud & Partners, 95 F. Supp. 3d 1013 (S.D. Tex. 2015). [Appeal 

Filed by Ramchandra Adhikari, et al. v. Daoud & Partners, et al., 5th Cir., 

April 21, 2015], 33

Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D. Tex. 2009), 46, 54, 64, 

73

Adhikari v. Daoud & Partners, No. 09–CV–1237, 2013 WL 4511354 (S.D. Tex. 

Aug. 23, 2013), 34, 35

Bowoto v. Chevron Corp. 621 F.3d 1116 (9th Cir. 2010), 92

Agency Holding v. Malley-Duff Assocs., Inc., 483 U.S. 143 (1987), 70, 96

Ahmed v. Magan, 2013 WL 4479077 (S.D. Ohio Aug. 20, 2013) (unpublished 

opinion), 29

Ahmed-Al-Khalifa v. Salvation Army, No. 3:13-CV-289-WS, 2013 WL 2432947 

(N.D. Fla. June 3, 2013), 26, 27

Akhtar v. Reno, 123 F. Supp. 2d 191 (S.D.N.Y. 2000), 10

Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), 28, 30, 32, 

36, 48

Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), 41

Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010), 8

Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (11th Cir. 2009), 

87

Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242 (11th Cir. 2005), 20, 

39, 52, 57

Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007), 46

Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005), 107

Alvarez v. United States, 331 F.3d 604 (9th Cir. 2003) (en banc), 103
International Human Rights Litigation

162

American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003), 121

Ansari v. New York Univ., 179 F.R.D. 112 (S.D.N.Y. 1998), 120

Antonio-Morales v. Bimbo’s Best Produce, Inc., No. Civ. A.8:5105, 2009 WL 

1591172 (E.D. La. Apr. 20, 2009), 94

Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006), vacated on other grounds,

585 F.3d 559 (2d Cir. 2009) (en banc), 115

Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008), vacated on other grounds, 585 F.3d 

559 (2d Cir. 2009) (en banc), 115

Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), 55, 116

Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006), 96, 97

Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989), 99

Arraz-Saenz v. Colorado, No. 07–CV–02046, 2009 WL 3162258 (D. Colo. Sept. 

29, 2009), 98

Ashcroft v. al-Kidd, 563 U.S. 731 (2011), 56

Ashcroft v. Iqbal, 556 U.S. 662 (2009), 17, 18, 39, 123

Ates v. Gülen, No. 3:15-CV-2354, 2016 WL 3568190 (M.D. Pa. June 29, 2016), 

32

Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), 12

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011), 7, 44, 46, 48

Baker v. Carr, 369 U.S. 186 (1962), 106, 108, 109

Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013), 30, 34, 38, 39

Balintulo v. Ford Motor Co., 796 F.3d 160 (2015), 33

Baloco v. Drummond Co., 640 F.3d 1338 (11th Cir. 2011), 88

Baloco v. Drummond Co., 767 F.3d 1229 (11th Cir. 2014), 35

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), 112

Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006), 107

Bauman v. DaimlerChrysler Corp., 644 F.3d 909 (9th Cir. 2011), 81, 82, 83

Beanal v. Freeport McMoran, 197 F.3d 161 (5th Cir. 1997), 7

Beazley v. Johnson 242 F.3d 248 (5th Cir. 2001), 10, 12

Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14 (D.D.C. 2011), 69

Ben–Haim v. Neeman, 543 F. App’x 152 (3d Cir. 2013), 27

Bennett v. Spear, 520 U.S. 154 (1997), 87

Biton v. Palestinian Interim Self-Gov. Auth., 310 F. Supp. 2d 172 (D.D.C. 2004), 

67

Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000), 46, 96, 113

Boumediene v. Bush, 553 U.S. 723 (2008), 3, 66
Table of Authorities

163

Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080 (N.D. Cal. 2008), aff’d, 621 F.3d 

1116 (9th Cir. 2010), 57, 59

Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010), 2, 46

Bowoto v. Chevron Corp., No. C 99-02506 SI, 2006 WL 2455752 (N.D. Cal. Aug. 

22, 2006), 43

Bowoto v. Chevron Corp., No. C-99-02506-SI, 2009 WL 1081096 (N.D. Cal. 

2009), 1

Bowoto v. Chevron Corp., No. C-99-02506-SI, Order Denying Bill of Costs, Apr. 

22, 2009 (N.D. Cal. 2009), 92

Bowoto v. Chevron, 312 F. Supp. 2d 1229 (N.D. Cal. 2004), 52

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001), 41

Brown v. Meter, 681 S.E.2d 382 (N.C. 2009), 80

Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2003), 43

Burnham v. Superior Court of California, 495 U.S. 604 (1990), 79

Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535 (9th Cir. 1986), 79

Cabello v. Fernández-Larios, 205 F. Supp. 2d 1325 (S.D. Fla. 2002), 88

Cabello v. Fernández-Larios, 402 F.3d 1148 (11th Cir. 2005), 42, 43, 44, 95, 96

Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th Cir. 1985), 111

Cardona v. Chiquita Brands Int’l, Inc., 135 S. Ct. 1842 (2015) (mem.), 35

Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 (11th Cir. 2014), 35, 37

Certain Underwriters at Lloyds London v. Great Socialist People’s Libyan Arab 

Jamahiriya, 677 F. Supp. 2d 270 (D.D.C. 2010), 68

Chavez v. Carranza, 407 F. Supp. 2d 925 (W.D. Tenn. 2004), 97

Chen Gang v. Zhao Zhizhen, No. 3:04–CV–1146, 2013 WL 5313411 (D. Conn. 

Sept. 20, 2013), 27

Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014), 120

China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987), 95

Chowdhury v. WorldTel Bangl. Holding, Ltd., 588 F. Supp. 2d 375 (E.D.N.Y. 

2008), rev’d on other grounds, 746 F.3d 42 (2d Cir. 2014), 52

Chowdhury v. Worldtel Bangl. Holding, Ltd., 746 F.3d 42 (2d Cir. 2014), 27, 49

Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998), 89

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), 105

Collett v. Socialist People’s Libyan Arab Jamahiriya, 362 F. Supp. 2d 230 (D.D.C. 

2005), 59, 97

Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. 

Cir. 1988), 13
International Human Rights Litigation

164

Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005), 43, 61, 72, 

88, 111

Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007), 106, 109

Cunard S.S. Co. v. Salen Reefer Services AB, 773 F.2d 452 (2d Cir. 1985), 113

Daimler AG v. Bauman, 134 S. Ct. 746 (2014), 49, 50, 81, 82, 83

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), 87

Dames & Moore v. Regan, 453 U.S. 654 (1981), 120

Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261 (D.D.C. 2005), 69

Doe I v. Cisco Sys., Inc., 66 F. Supp. 3d 1239 (N.D. Cal. 2014), appeal filed, Doe 

v. Cisco Sys., Inc., No. 15-16909 (9th Cir. Sept. 24, 2015), 36

Doe I v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998), 90

Doe I v. Karadzić, 866 F. Supp. 734 (S.D.N.Y. 1994), 90

Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014), reh’g denied, 788 F.3d 

946 (9th Cir. 2015), 34, 39, 44, 47

Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014), cert. denied, Nestle 

U.S.A., Inc. v. John Doe I, 136 S. Ct. 798 (2016), 44

Doe I v. Nestle USA, Inc., 788 F.3d 946 (9th Cir. 2015), 44

Doe I v. Liu Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004), 6

Doe v. Constant, 354 F. App’x 543 (2d Cir. 2009), 59, 76

Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015), 30, 35

Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005), 39, 41, 43, 45, 58, 

59

Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014), 39

Doe v. Exxon Mobil Corp., No. 01–1357, 2015 WL 5042118 (D.D.C. July 6, 

2015), 30, 34, 37, 41

Doe v. Exxon Mobil, 573 F. Supp. 2d 16 (D.D.C. 2008), 45, 46, 52, 53

Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115 (D.D.C. 2003), 89

Doe v. Karadzic, 176 F.R.D. 458 (S.D.N.Y. 1997), 89, 90

Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004), 57

Doe v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005), 111

Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001), 46

Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), 7, 39, 44, 48

Du Daobin v. Cisco Sys., Inc., 2 F. Supp. 3d 717 (D. Md. 2014), 31

El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), 116

El-Masri v. Tenet, 479 F.3d 296 (4th Cir. 2007), 116

El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), 115

Employment Division v. Smith, 494 U.S. 872 (1990), 65
Table of Authorities

165

Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), 57, 58, 60

Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), cert. denied, 546 U.S. 1175 

(2006) (mem.), 59

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), 8

Estate of Amergi v. Palestinian Auth., 611 F.3d 1350 (11th Cir. 2010), 41, 138

Estate of Atban v. Blackwater Lodge Training Center, 611 F. Supp. 2d 1 (D.D.C. 

2009), 94

Estate of Klieman v. Palestinian Auth., 424 F. Supp. 2d 153 (D.D.C. 2006), 66

Estate of Klieman v. Palestinian Auth., 467 F. Supp. 2d 107 (D.D.C. 2006), 79

Estate of Manook v. Research Triangle Inst., 693 F. Supp. 2d 4 (D.D.C. 2010), 78

Fayoade v. Spratte, 284 F. App’x 345 (7th Cir. 2008), 98

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), 7, 8, 14, 42, 79

Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847 (7th Cir. 2015), 113

Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1997), 69

Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011), 40, 46, 47

Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003), 17

Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006), 5

Gabbanelli Accordions & Imps., L.L.C. v. Ditta Gabbanelli Ubaldo Di Elio 

Gabbanelli, 575 F.3d 693 (9th Cir. 2009), 120

Gilmore v. Palestinian Interim Self-Gov’t Auth., 422 F. Supp. 2d 96 (D.D.C. 

2006), 80, 100

Giraldo v. Drummond Co., No. 2:09–CV–1041, 2013 WL 3873960 (N.D. Ala. 

July 25, 2013), 30

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011), 79, 

80, 82

Gross v. German Found. Indus. Initiative, 456 F.3d 363 (3d Cir. 2006), 110, 113

Guinto v. Marcos, 654 F. Supp. 276 (S.D. Cal. 1986), 41

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), 84, 85

Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56 (D.D.C. 2006), 69

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), 14, 43

Hartford Fire Ins. Co. v. California 509 U.S. 764 (1993), 6, 113

Hatzlach Supply, Inc. v. Tradewind Airways, Ltd., 659 F. Supp. 115 (S.D.N.Y. 

1987), 85

Hernandez v. Attisha, 2010 WL 816160 (S.D. Cal. Mar. 4, 2010), 96

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), 43, 95

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1994), 56, 58, 89, 97, 119

Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir. 1996), 102, 111
International Human Rights Litigation

166

Hilton v. Guyot, 159 U.S. 113 (1895), 113

Hitai v. INS, 343 F.2d 466 (2d Cir. 1965), 11

Hua Chen v. Honghui Shi, No. 09-8920-RJS, 2013 WL 3963735 (S.D.N.Y. Aug. 

1, 2013), 27

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977), 89

Hunter v. Bryant, 502 U.S. 224 (1991), 92, 99

Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005), 70

In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295 (N.D. Ind. 1997), 91

In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015), 50

In re Arab Bank, PLC Alien Tort Statute Litig., 822 F.3d 34 (2d Cir. 2016), 51

In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 300 (3d Cir.

2004), 76

In re Chiquita Brands Int’l, Inc. Alien Tort Statute & S’holders Derivative Litig., 

536 F. Supp. 2d 1371 (2008), 90, 95

In re Chiquita Brands Int’l, Inc., 690 F. Supp. 2d 1296 (S.D. Fla. 2010), 98

In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493 (9th Cir. 

1992), 8

In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467 (9th Cir. 

1994), 40

In re S. African Apartheid Litig., 15 F. Supp. 3d 454 (S.D.N.Y. 2014), 39, 50

In re S. African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004), 43

In re S. African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009), 19, 20, 53, 

60, 90, 95

In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007), 115

In re Terrorist Attack on Sept. 11, 2001, 740 F. Supp. 2d 494 (S.D.N.Y. 2010), 45, 

54, 67, 80

In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005), 43

In re Xe Services Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009), 41, 48, 59

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945), 79

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999), 95

J. McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873 (2011), 81

Jama v. INS, 22 F. Supp. 2d 353 (D.N.J. 1998), 10, 60

Jama v. INS, 343 F. Supp. 2d 338 (D.N.J. 2004), 65, 96

Jane Doe I v. Karadzic, No. 93-CIV-0878, Order of Aug. 28, 2001, 2001 WL 

986545 (S.D.N.Y. 2001), 119

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986), 105

Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005), 59, 60, 97
Table of Authorities

167

Jet Wine & Spirits, Inc. v. Bacardi & Co., 298 F.3d 1 (1st Cir. 2000), 78, 79

Johnson v. Eisentrager, 339 U.S. 763 (1950), 65

Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), 109

Jovic v. L-3 Servs., Inc., 69 F. Supp. 3d 750 (N.D. Ill. 2014), 36

Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995), 8, 18, 42, 55, 57, 59, 77, 78, 79, 107, 

111

Kaplan v. al Jazeera, No. 10-CV-5298, 2011 WL 2314783 (S.D.N.Y. 2011), 18

Kaplan v. Cent. Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185 (D.D.C. 

2013), 38

Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998), 115

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007), 40, 43, 44, 46, 

55, 112

Kickapoo Tribe of the Indians of the Kickapoo Res. in Kan. v. Babbitt, 43 F.3d 

1491 (D.C. Cir. 1995), 90

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), 10, 20, 21, 22, 23, 

26, 28, 35, 47, 48, 55, 83

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), aff’d, 133 S. 

Ct. 1659 (2013), 20, 47, 48

Kiobel v. Royal Dutch Petroleum, 132 S. Ct. 472 (2011) (mem.), 20

Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), reh’g denied, 642 

F.3d 379 (2d Cir. 2011) (en banc), 20, 21

Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), reh’g denied, 642 

F.3d 379 (2d Cir. 2011) (en banc), cert. granted, 132 S. Ct. 472 (2011) (mem.), 

40

Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424 (S.D.N.Y. 2004), 100, 110, 

113

Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), 104

Koster v. Am. Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947), 84

Kpadeh v. Emmanuel, 261 F.R.D. 687 (S.D. Fla. 2009), 90

Krishanti v. Rajaratnam, No. 2:09–CV–05395, 2014 WL 1669873 (D.N.J. Apr. 

28, 2014), 31

Kulko v. Superior Court, 436 U.S. 84 (1978), 78

Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994), 99, 101, 111

Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), 56, 66

Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201 (2d Cir. 2016), 33, 49, 51

Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (2d Cir. 2013), 

49
International Human Rights Litigation

168

Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270 (S.D. Fla. 2008), 86

Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008), 46, 72

Linde v. Arab Bank, PLC, 950 F. Supp. 2d 459 (E.D.N.Y. 2013), 96, 98

Linder v. Calero Portocarrero, 963 F.2d 332 (11th Cir. 1992), 3

Litle v. Arab Bank, PLC, 507 F. Supp. 2d 267 (E.D.N.Y. 2007), 67, 98

Lopez v. Council on American-Islamic Relations Action Network, Inc., 657 F. 

Supp. 2d 104 (D.D.C. 2009), 72

Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2012), 62

Mamani v. Berzain, 21 F. Supp. 3d 1353 (S.D. Fla. 2014), 29

Mamani v. Berzain, 825 F.3d 1304 (11th Cir. 2016), 58

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 107

Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998), 103

Mastafa v. Australian Wheat Bd., No. 07-CV-7955, 2008 WL 4378443 (S.D.N.Y. 

Sept. 25, 2008), 86, 87

Mastafa v. Chevron Corp., 759 F. Supp. 2d 297 (S.D.N.Y. 2010), 56

Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014), 29, 30, 33

McCarthy v. Madigan, 503 U.S. 140 (1992), 61

McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963), 

6

Medellín v. Texas, 552 U.S. 491 (2008), 1, 10

Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir. 2002), 83

Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015), 56

Mitchell v. Forsyth, 472 U.S. 511 (1985), 92, 99

Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012), 18, 42, 61, 62, 83

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010), 114, 116, 

117

Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48 (D.D.C. 2013), 26

Mones v. Commercial Bank of Kuwait, 502 F. Supp. 2d 363 (S.D.N.Y. 2007), 76

Mora v. New York, 524 F.3d 183 (2d Cir. 2008), 41

Morris v. Khadr, 415 F. Supp. 2d 1323 (D. Utah 2006), 66

Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010), 21, 22, 23

Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir. 1983), 72

Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014), 29, 30

Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005),

41, 60, 108

Murillo v. Bain, No. H–11–2373, 2013 WL 1718915 (S.D. Tex. Apr. 19, 2013), 27
Table of Authorities

169

Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), 6

Mushayahama v. Holder, 469 F. App’x 443 (6th Cir. 2012), 62

Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 2005), 78

Mwani v. Bin Laden, 947 F. Supp. 2d 1 (D.D.C. 2013), 37, 38

Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), 110

Nat’l Coal. Gov’t of Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 

1997), 89

Nike, Inc. v. Kasky, 539 U.S. 654 (2003), 87

Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005), 13

OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015), 26

Owens v. Republic of Sudan, 374 F. Supp. 2d 1 (D.D.C. 2005), 68

Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012), 56, 66

Papa v. United States, 281 F.3d 1004 (9th Cir. 2002), 95

Paul v. Arvil, 901 F. Supp. 330 (S.D. Fla. 1994), 119

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), 85

Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289

(S.D.N.Y. 2003), 43, 89

Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244 (2d Cir. 2009), 

43, 44, 45, 46

Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01-CV-9882, 2005 

WL 2082846 (S.D.N.Y. 2005), 59

Prosecutor v. Furundzija, Int’l Crim. Trib. for the Former Yugo., Case No. 

ICTY-95-17/1-T, Judgment, ¶ 153 (Dec. 10, 1998), 14

Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968), 90

Rasul v. Myers, 512 F.3d 644 (2008) (Rasul I), 66

Rasul v. Myers, 555 U.S. 1083 (2008) (vacating prior decision), 66

Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (Rasul II), 65, 66

Reid v. Covert, 354 U.S. 1 (1957), 5

Republic of Argentina v. NML Capital Ltd., 134 S. Ct. 2250 (2014), 99, 119

Republic of Austria v. Altmann, 541 U.S. 677 (2004), 100, 101, 110

Republic of Iraq v. Beaty, 556 U.S. 848 (2009), 110

Respublica v. De Longchamps, 1 U.S. (1 Dall. ) 111 (Pa. 1784), 77

Rio Tinto, PLC v. Sarei, 133 S. Ct. 1995 (2013), 21

RJR Nabisco v. European Community, 136 S. Ct. 2090 (2016), 71

Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007), 64

Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008), 43, 46, 47, 56
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Rosner v. United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002), 99

Rothstein v. UBS AG, 647 F. Supp. 2d 292 (S.D.N.Y. 2009), 67

Royal & Sun Alliance Ins. Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88 

(2d Cir. 2006), 94

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, 131 S. Ct. 3055 

(2011) (mem.), 47, 104

Salim v. Mitchell, No. CV-15-0286, 2016 WL 1717185 (E.D. Wash. Apr. 28, 

2016), 32

Samantar v. Yousuf, 560 U.S. 305 (2010), 101

Sarei v. Rio Tinto, 487 F.3d 1193 (9th Cir. 2007), 105, 111

Sarei v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008) (en banc), 60, 61, 111

Sarei v. Rio Tinto, 671 F.3d 736 (9th Cir. 2011), cert. granted and judgment 

vacated, Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013), 26

Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007), 40, 107, 111

Sarei v. Rio Tinto, PLC, 650 F. Supp. 2d 1004 (C.D. Cal. 2009), 61

Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), 20, 21, 47

Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), cert. granted and judgment 

vacated, Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013), 61

Sarei v. Rio Tinto, PLC, 722 F.3d 1109 (9th Cir. 2013) (en banc), 21, 26, 60

Saudi Arabia v. Nelson, 507 U.S. 349 (1993), 99

Schindler Elevator Corp. v. Otis Elevator Co., 657 F. Supp. 2d 525 (D.N.J. 2009),

76, 91

Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), 55

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), 102, 104

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), 70

Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304 (D. Mass. 2013), 30, 31, 

119

Sherbert v. Verner, 374 U.S. 398 (1963), 65

Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), 102

Sikhs for Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp. 3d 334 (S.D.N.Y. 

2014), aff’d sub nom. Sikhs for Justice, Inc. v. Nath, 596 F. App’x 7 (2d Cir. 

2014), 50, 53

Simon v. Republic of Hungary, 37 F. Supp. 3d 381 (D.D.C. 2014), 38

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated by

Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012), 52

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), 18, 42, 52, 61
Table of Authorities

171

Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of 

Iowa, 482 U.S. 522 (1987), 91, 112

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), 1, 7, 8, 9, 10, 11, 16, 19, 21, 22, 26, 

39, 40, 47, 60, 77, 103, 123

Strauss v. Credit Lyonnais, S.A., No. CV-06-0702, 2007 WL 2296832 (E.D.N.Y. 

Aug. 6, 2007), 98

Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2001), aff’d sub nom. in part, 

rev’d in part, and remanded by Tachiona v. United States, 386 F.3d 205 (2d 

Cir. 2004), 101

Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004), 77

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), 1

The Paquete Habana, 175 U.S. 677 (1900), 5, 9, 17

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984), 6

Türedi v. Coca-Cola Co., 343 F. App’x 623 (2d Cir. 2009), 87

Tymoshenko v. Firtash, 57 F. Supp. 3d 311 (S.D.N.Y. 2014), 27

Tymoshenko v. Firtash, No. 11–CV–2794, 2013 WL 4564646 (S.D.N.Y. Aug. 28, 

2013), 50

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004), 112

United Food and Commercial Workers v. Brown Group, 517 U.S. 544 (1996), 89

United States v. Bailey, 444 U.S. 394 (1980), 15

United States v. Belfast, 611 F.3d 783 (11th Cir. 2010), 4, 15

United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), 16

United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812), 93

United States v. Pink, 315 U.S. 203 (1942), 121

United States v. Reynolds, 345 U.S. 1 (1953), 114, 115, 116

United States v. Smith, 18 U.S. 153 (1820), 5

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), 65

Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004), 95

Vaughn v. Hvass, No. C4-99-2184, 2000 WL 73067 (unpublished opinion) 

(Minn. Ct. App. June 6, 2000), 11, 18

Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d 

Cir. 2008), 104

Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (D.D.C. 2006), 109

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), 76, 83

W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (1990), 110

Warfaa v. Ali, 33 F. Supp. 3d 653 (E.D. Va. 2014), aff’d, Warfaa v. Ali, 811 F.3d 

653 (4th Cir. 2016), 29
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Weiss v. National Westminster Bank PLC, 453 F. Supp. 2d 609 (E.D.N.Y. 2006), 

67

Weisskopf v. United Jewish Appeal-Fed. of Jewish Philanthropies of N.Y., Inc., 

889 F. Supp. 2d 912 (S.D. Tex. 2012), 56

Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57 (2d Cir. 2005), 106

Whitney v. Robertson, 124 U.S. 190 (1888), 6

Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765 (D.C. Cir. 1986), 90

Williams v. AES Corp., 28 F. Supp. 3d 553 (E.D. Va. 2014), 34, 35

Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36 (1st Cir. 2005), 87

Wisconsin v. Yoder, 406 U.S. 205 (1972), 65

Wiwa v. Royal Dutch Petroleum Co., No. 96-CV-8386, 2002 WL 319887 

(S.D.N.Y. Feb. 28, 2002), 57, 70

Wiwa v. Royal Dutch Petroleum, 226 F.3d 88 (2d Cir. 2000), 7, 54, 79, 84, 85, 86

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), 79

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), 3, 41, 88, 90, 119

Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004), 102

You v. Japan, No. C-5-03257, 2015 WL 6689398 (N.D. Cal. Nov. 3, 2015), 38

Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012), 102

Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2011), 62

Zivotofsky v. Clinton, 132 S. Ct. 14211 (2012), 107

Constitutional Provisions

U.S. Const. amend. XIII, 93

U.S. Const. art. I, § 8, cl. 10, 5, 93

U.S. Const. art. II, § 2, 107

U.S. Const. art. VI, cl. 2, 5, 9

Rules

Fed. R. Civ. P. 4 and 4.1, 75, 78

Fed. R. Civ. P. 10(a), 90

Fed. R. Civ. P. 19(b), 90

Fed. R. Civ. P. 23(a) and 23(b), 89

Statutes

18 U.S.C. §§ 1589–91, 63

18 U.S.C. § 1595(a), 63, 64
Table of Authorities

173

18 U.S.C. § 1595(b)(1), 94

18 U.S.C. § 1596(a), 64

18 U.S.C. § 2340(1), 15

18 U.S.C. § 2340(2), 15

28 U.S.C. § 1332, 3

28 U.S.C. § 1367, 3

28 U.S.C. § 1606, 69

1934 Securities Exchange Act, 21

2013 National Defense Authorization Act, Pub. L. No. 112-239, 126 Stat. 1632 

(2013), 96

Alien Tort Claims Act (Alien Tort Statute or ATS), 28 U.S.C. § 1350 (2012), 2, 4

6, 7, 10, 21, 47, 48, 67

Anti-Terrorism Act (ATA), 18 U.S.C. § 2333 (2010), 2, 63, 66, 67, 68, 94, 96, 97

Arms Export Control Act, 22 U.S.C. § 2780 (2012), 68

Crimes Against Humanity Act of 2009, S. 1346, 111th Cong., 1st Sess. (June 24, 

2009), 16

Export Administration Act of 1979, 50 U.S.C. app. 2405(j) (2012), 68

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2675, & 2680 (2012),

9, 103, 104

Flatow Amendment, Pub. L. No. 104-208, div. A, tit. I § 101(c), 28 U.S.C. § 1605 

(note) (2012), 69

Foreign Assistance Act of 1961, 22 U.S.C. § 2371(a) (2012), 68

Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, § 506, 18 

U.S.C. § 2340A (2001), 12, 93

Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605A (2012), 2, 63, 68, 

69, 77, 94, 96, 99, 100, 119, 123

Genocide Accountability Act of 2007, Pub. L. No. 110-151 § 2 (Dec. 21, 2007),

121 Stat. 1821, 18

Libyan Claims Resolution Act, Pub. L. No. 110–301, Aug. 4, 2008, 122 Stat. 2999, 

28 U.S.C.A. § 1605A (note), 68

Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261–67 (2000), 93, 94

Proxmire Act, 18 U.S.C. § 1091 (2010), 11, 18, 19

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961, 

1962, 1964(c) (2012), 3, 63, 69, 70

Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-1 (2012), 3, 63, 

64, 65
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174

Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (ICC 

Statute) (1998), 14, 15

Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. § 1350 (2012), 2, 4, 6, 

12, 13, 23, 54, 55, 58, 61, 67, 88, 95, 97

Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1595

(2012), 2, 63, 64, 91, 93, 96

United States Policy with Respect to the Involuntary Return of Persons in 

Danger of Subjection to Torture, Foreign Affairs Reform and Restructuring 

(FARR) Act of 1998, Pub. L. No. 105-277, div. G, tit. XXII, § 2242, 112 Stat. 

2681-822 (codified at 8 U.S.C. § 1231) (2012), 12

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 

114 Stat. 1464, § 103(9) (2000), 22 U.S.C. §§ 7101–7112 (2011) (as amended), 

94

War Crimes Act of 1996, 18 U.S.C. § 2441 (1996), 5, 14, 93, 94

Westfall Act, 28 U.S.C. § 2679(d)(1) (2012), 103

White Slave Traffic Act of 1910 (Mann Act), 18 U.S.C. §§ 2421–2424 (2000) (as 

amended), 93

William Wilberforce Trafficking Victims Protection Reauthorization Act of 

2008, 18 U.S.C. § 1595 (2012), 2, 63, 64, 91, 93, 96

Other Authorities

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, 1465 U.N.T.S. 85, 3, 6, 12, 13, 14, 

15, 62, 93, 129

Convention for the Suppression of the Traffic in Persons and of the Exploitation 

of the Prostitution of Others, 96 U.N.T.S. 271 (Mar. 21, 1950), 93

Convention on the Prevention and Punishment of the Crime of Genocide, 78 

U.N.T.S. 277 (1948), 11, 18, 19

Michael J. Garcia, CRS Report for Congress: U.N. Convention Against Torture 

(CAT): Overview and Application to Interrogation Techniques, Jan. 25, 2008, 

13

Geneva Convention Relative to the Protection of Civilian Persons in Time of 

War (Geneva Convention IV), Aug. 12, 1949, 75 U.N.T.S. 287 (1949), 14, 130

Hague Convention on Private International Law, Convention on Choice of 

Court Agreements, June 30, 2005, 44 I.L.M. 1294, 120

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention), Nov. 

15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (1969), 75, 76
Table of Authorities

175

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial 

Matters (Hague Evidence Convention), Mar. 18, 1970, 23 U.S.T. 2555, 

T.I.A.S. No. 7444, 91

Implementation of the Convention Against Torture, 8 C.F.R. § 208.18(a) (2008), 

12

Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, O.A.S. 

Doc. OEA/Ser. P, A.G./Doc. 2023/85 Rev. 1, 15

International Convention for the Suppression of the Traffic in Women and 

Children, 9 L.N.T.S. 415 (Sept. 30, 1921), 93

International Convention for the Suppression of the White Slave Traffic, May 4, 

1910, Gr. Brit. T.S. No. 20 (1912) (Cd. 6326), 93

Memorandum from the Attorney General to the Heads of Executive Departments and Agencies on Policies and Procedures Governing Invocation of the 

State Secrets Privilege, Sept. 23, 2009, available at http://www.justice.gov/

sites/default/files/opa/legacy/2009/09/23/state-secret-privileges.pdf, 114

Model Penal Code § 2.02(b) (1985), 44

Office of Foreign Assets Control, Department of the Treasury, Prohibited Financial Transactions, 31 C.F.R. § 596.201 (1997), 68

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially 

Women and Children, Supplementing the United Nations Convention 

Against Transnational Organized Crime, G.A. Res. 55/25, Annex II, U.N. Doc 

A/RES/55/25/Annex II (Nov. 15, 2000), 93

Restatement (Third) of Foreign Relations Law of the United States (1987), 1, 5, 

16, 17, 77, 92, 93, 102, 111

Rhode Island Comm’n for Human Rights, http://www.richr.state.ri.us (last

visited Aug. 10, 2016), 1

United States Reservations, Declarations, and Understandings, International 

Covenant on Civil and Political Rights (ICCPR), Declaration No. 1, 138 

Cong. Rec. S4781–01 (daily ed., Apr. 2, 1992), 11, 130

U.S. State Department—State Sponsors of Terrorism Designations, http://www.

state.gov/j/ct/list/c14151.htm (last visited Aug. 10, 2016), 68

Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 

331, 102

Books and Articles

107 Am. J. Int’l Law 601 (2013), 25

136 Cong. Rec. S17486 (daily ed., Oct. 27, 1990), 12

138 Cong. Rec. 8071 (1992) (Senate ratification of ICCPR), 12
International Human Rights Litigation

176

Howard Fink et al., Federal Courts in the 21st Century 763–71 (3d ed., 2007), 

105

Manual for Complex Litigation, Fourth (2004), 2, 125

David L. Nersessian, Business Lawyers as Worldwide Moral Gatekeepers? Legal 

Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics 

1135 (2015), 13

Richard A. Posner, Torture, Terrorism, and Interrogation, in Torture: A 

Collection 291 (Sanford Levinson ed., 2004), 14

Robert Timothy Reagan, Keeping Government Secrets: A Pocket Guide to the 

State-Secrets Privilege, the Classified Information Procedures Act, and Classified Information Security Officers (Federal Judicial Center, 2d ed. 2013), 114

Michael A. Scaperlanda, Immigration Law: A Primer (Federal Judicial Center

2009), 3, 62

David Scheffer, Closing the Impunity Gap in U.S. Law, 8 Nw. U. J. Int’l Rts. 30 

(2009), 16

William W Schwarzer & Alan Hirsch, The Elements of Case Management: A 

Pocket Guide for Judges (Federal Judicial Center, 2d ed. 2006), 123

David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges 

(Federal Judicial Center 2013), 2, 69, 92, 99

United States Manual for Military Commissions, 2010 Edition, Apr. 27, 2010, 15
177

About the Author

Dr. David Nersessian is an Assistant Professor in the Accounting and 

Law Division of Babson College, where he teaches Business Law and 

Public International Law. He earned his D. Phil. (Ph.D.) in Law from 

Oxford University (St. Catherine’s College), where his research concentrated in public international law and human rights. He earned his J.D.

magna cum laude from Boston University School of Law.

Before joining Babson, Dr. Nersessian held administrative and teaching appointments at Boston University Questrom School of Business, 

Boston University School of Law, and Harvard Law School. He was a Supreme Court Fellow at the U.S. Supreme Court from 2005 to 2006. Prior 

to completing his doctoral work, Dr. Nersessian practiced for six years 

with several large law firms, representing clients in complex commercial 

litigation in state and federal courts, administrative proceedings, and private arbitrations throughout the United States.

Dr. Nersessian’s book Genocide and Political Groups was published 

by Oxford University Press in 2010. His research concentrates on public 

international law, human rights, legal ethics, and the management of legal and ethical risk in the corporate setting. He has a particular focus on 

the role of corporate lawyers in human rights issues, the intersection of 

business and human rights, and the impact of globalization on the ethical 

regulation of the legal profession. In addition to his work in globalization 

and ethics, he continues to write, speak, and consult in public international law and human rights.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District 

of New York 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of 

Georgia 

Judge George Z. Singal, U.S. District Court for the District of Maine

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, 

which also includes the director of the Administrative Office of the U.S. Courts and 

seven judges elected by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court 

staff, including in-person programs, video programs, publications, curriculum packages for in-district training, and Web-based programs and resources. The Research 

Division examines and evaluates current and alternative federal court practices and 

policies. This research assists Judicial Conference committees, who request most 

Center research, in developing policy recommendations. The Center’s research also 

contributes substantially to its educational programs. The Federal Judicial History 

Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials 

from foreign countries and informs federal judicial personnel of developments in 

international law and other court systems that may affect their work. Two units of 

the Director’s Office—the Information Technology Office and the Editorial & Information Services Office—support Center missions through technology, editorial 

and design assistance, and organization and dissemination of Center resources.