The Alien Tort Statute: A Remedy for Chemical Genocide

by Raphael Metzger

It is a sad fact that when toxic chemicals are banned by Western countries, manufacturers often sell them to third world countries to exploit markets of unregulated societies. Examples are Canadian asbestos manufacturers exporting asbestos to Asia, Eastern Europe, and Latin America, and American tobacco companies exporting cigarettes throughout the Third World.

A common pattern emerges in such situations. First, markets in industrialized countries for such toxic chemicals have dried up, because the products have been banned, heavily regulated, or the manufacturers have sustained adverse judgments for injuring those exposed. Second, lacking profitable markets in industrialized countries for their products, manufacturers seek to export the toxic products. Third, the available markets are third world countries that are desperate for economic development, lack governmental regulatory protections, lack legal systems that provide redress for injuries, and lack public health and medical facilities to treat those injured from the exported toxic products. By selling their toxic products in third world countries, manufacturers are able to continue product lines and increase profits while causing untold harm to uneducated, illiterate, and vulnerable indigenous people, including children.

Historically, companies that cause toxic injuries or death in third world countries have escaped liability because of legal protections afforded them by Western countries and the economic impracticability of third world victims seeking legal redress for their injuries. A prime example is the Bhopal disaster in which the wrongful death and injury claims by victims in India against Union Carbide were dismissed by a federal United States court under the doctrine of "forum non conveniens," a legal doctrine allowing a court to dismiss a case on motion of the defendant where the accident or event giving rise to the injury occurs abroad.

A recent decision of the United States Supreme Court, invigorating a centuries old anti-piracy law, may, however, provide some third world victims of toxic injuries recourse in U.S. courts. The law is the Alien Tort Claims Act, 28 U.S.C. § 1350, which provides original federal jurisdiction for "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."  The law was adopted in 1789 as part of the original Judiciary Act, to provide legal recourse against the 18th Century version of terrorism, i.e., piracy. For almost two centuries, the statute lay relatively dormant, supporting jurisdiction in only a handful of cases. However, as a result of increasing international concern with human rights issues, in the 1990s litigants began to seek redress for human rights violations committed abroad.

While cases filed by foreign nationals that seek compensation for injuries occurring abroad from the negligence or defective products of American corporations may be dismissed pursuant to the forum non conveniens doctrine, cases filed by foreign nationals in United States District Courts under the Alien Tort Claims Act may not be dismissed pursuant to the forum non conveniens doctrine, because the Alien Tort Claims Act expressly provides for jurisdiction of such cases in the federal district courts. However, to succeed, such cases must establish a violation of the law of nations or a treaty - not mere negligence or other common law torts.

The law of nations is found in international conventions and treaties. One of the most appealing laws of nations upon which to predicate suits under the Alien Tort Claims Act is genocide.  The Convention for the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly in December 1948 and came into effect in January 1951.  It contains an internationally-recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC).

Article 2 of the Convention for the Prevention and Punishment of the Crime of Genocide defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group."

Article 3 of the Convention states that "the following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Article 30 of the ICC Statute states: "Unless otherwise provided, a person shall be criminally responsible ... only if the material elements are committed with intent and knowledge. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. For the purposes of this article, 'knowledge' means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 'Know' and 'knowingly' shall be construed accordingly."
Predicating an Alien Tort Claims Act lawsuit upon genocide as a violation of the law of nations may provide a remedy by foreign nationals against American corporations that export toxic products that kill indigenous populations, cause bodily or mental harm to indigenous populations, or cause infertility or birth defects in indigenous people.

Another advantage of predicating an Alien Tort Claims Act suit on genocide is the absence of a statute of limitations for genocide. Although no federal court has addressed the issue, genocide-based Alien Tort Claims Act suits may not be subject to the usual statute of limitations defenses.