The Public Interest Advocacy Centre (PIAC), a legal and policy organisation based in Sydney, and the Human Rights Council of Australia have joined human rights groups from around the world to oppose an attack on a significant US Statute.
US Aliens Torts Claims Act
The Statute at the heart of the controversy is the US Alien Torts Claims Act of 1789 (ATCA). The ATCA gives U.S. Federal courts jurisdiction over wrongful acts committed in violation of the law of nations or a treaty of the United States. There is no requirement that the wrongful act or the complainant have any connection with the United States. All that is necessary is that the defendant committed a violation of international human rights law and can be served with legal process in the United States.
US Supreme Court proceedings
The ATCA has recently come under fire in the case of Sosa v Alvarez-Machain, currently before the U.S. Supreme Court. Sosa, a former Mexican police official who is being sued under the ATCA for the unlawful detention and arrest of a Mexican national, has argued, with the support of the U.S. Government, that the application of the ATCA should be restricted. The Australian government has intervened in the proceedings by filing an amicus brief in support of the U.S. Government, in conjunction with the governments of the United Kingdom and Switzerland. Their intervention seeks the restriction of the Act to cases that have an appropriate connection with the U.S. or involve activities by U.S. nationals.
Opposition by human rights groups
On 27 February 2004, the New York-based Center for Constitutional Rights filed an amicus brief in the Sosa case seeking to prevent the ATCA being overturned or restricted. The brief, which opposes the stance taken by Sosa, the US Government and supporting governments, seeks to preserve the application of the ATCA to human rights claims. The Centre’s application has been endorsed by PIAC, the Human Rights Council of Australia, Amnesty International and a number of other concerned human rights groups.
According to Andrea Durbach, Director of PIAC:
The ATCA has emerged as a significant instrument for the protection of human rights. It was first used in this way in 1980 by Dr Joel Filartiga, a Paraguayan citizen, who brought an action in the New York District Court against the policeman who had tortured his 17-year-old son to death in Paraguay. Interestingly, since then, US courts have consistently applied the ATCA to core human rights abuses, including genocide, summary execution, torture, arbitrary detention, slavery and crimes against humanity.
Regrettably, continues Ms Durbach, the US Government has now determined that contemporary application of the ATCA potentially interferes with US foreign affairs initiatives. For some reason, the Australian Government has yoked itself to the American Government to undermine a vitally important instrument of international human rights protection.
Addressing the problem of impunity for egregious abuses and holding perpetrators accountable are key priorities for governments, including our own. The ATCA was used in 1994 by Ms Helen Todd who successfully sued a former Indonesian general (residing in Boston at the time) in connection with the murder of her 19-year-old son by the general’s troops in East Timor. A US District Court awarded Ms Todd $4 million in compensatory damages and $10 million in punitive damages. Awards of this nature can have a significant deterrent effect on human rights abuses in other countries. Perhaps more importantly, the ATCA provides a forum for victims of human rights abuses and their families, who may have suffered in silence for many years, to tell the world of the wrongs done to them.
Andrew Naylor, Chairperson of the Human Rights Council of Australia comments:
The decision of the Australian Government to join with the United States Government and the alleged perpetrator to challenge the validity of the ATCA, is questionable. Certainly, it sends the wrong message. Australia should not sanction alleged perpetrators of serious human rights abuses escaping accountability for their actions. The Australian Government’s actions should be consistent with the obligation under international law to ensure that those whose rights have been violated can seek justice through the courts.”
MEDIA CONTACT: Dominic O’Grady, Media and Communications Officer,
Public Interest Advocacy Centre. Ph: 02 8898 6532 or 0400 110 169