The World in U.S. Courts: Fall 2015 - Alien Tort Statute (ATS)/Foreign Sovereign Immunity Act (FSIA) | July.06.2015
Plaintiffs alleged that Indonesian soldiers serving as security guards at an ExxonMobil natural gas facility in Indonesia violated their human rights in 2000 and 2001, and in 2001 sued ExxonMobil under the ATS. In a decision reported in the Fall 2014 issue of The World in U.S. Courts, the U.S. District Court in Washington, DC dismissed the claims because they were based on an impermissible extraterritorial application of the ATS. But, because that requirement was only set forth by the U.S. Supreme Court after the complaint was filed, the Court allowed the plaintiffs to amend their complaint to try to meet the new requirements. The present decision considers the plaintiffs' request to amend their complaint, and ExxonMobil's corresponding motion to dismiss.
After first confirming that corporations may be liable under the ATS, the Court considered whether the complaint satisfied the requirement that "violations of customary international law" be alleged. The Court assumed that conduct must have been committed by representatives of a government in order to be violations of international law, and found the security guards' status as active members of the Indonesian military satisfied the requirement for pleading purposes. The Court then concluded that two of the alleged violations of law—"arbitrary detention" and "cruel, inhuman, and degrading treatment"—had been recognized by other courts as violations of customary international law, rejecting that status for a third alleged violation, "forced disappearance." The Court further concluded that allegations of "torture and extrajudicial killing" were cognizable under the ATS, finding that the later-enacted Torture Victims Protection Act had not become the exclusive vehicle for suits based on such claims, and that extrajudicial killings could be the subject of an ATS claim even absent an allegation of systematic mass killing. Finally, the Court concluded that a defendant could be found liable merely for "aiding and abetting" the conduct of a non-U.S. sovereign.
The Court then addressed the extraterritorial scope of the ATS, noting the lack of standards for determining whether the allegations of a complaint "touch and concern" the U.S. sufficiently to displace the presumption against extraterritoriality. The Court adopted a test under which an ATS violation requires "substantial and specific domestic conduct relevant to" the violation, subject to the consideration of other factors that might support the assertion of jurisdiction. The Court stated that the principal basis for ATS jurisdiction is conduct alleged to have occurred in the U.S. that falls within the scope of the statute. Where a less direct connection is alleged, the Court noted that it would consider additional factors, including whether the defendant is a U.S. citizen or corporation and whether U.S. connections "implicate important national interests."
Because the plaintiffs alleged an "aiding and abetting" ATS violation, the Court first concluded that a plaintiff additionally had to allege two components, typically found in violations of criminal law, that go by the Latin terms "actus reus" ("practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime") and "mens rea" (knowledge that one's actions are connected to the commission of a crime).
As relevant here, the Court denied ExxonMobil's motion to dismiss. It found that the plaintiffs satisfied the mens rea requirement by alleging in their amended complaint that ExxonMobil officials had "received briefings" on (i) abuses committed by Exxon security personnel in Indonesia, (ii) prior instances in which Indonesian military personnel had allegedly committed human rights abuses, and (iii) the likelihood that providing resources to the personnel would increase the likelihood of such violations. The Court found that the actus reus requirement was satisfied by the allegations of ExxonMobil's decisions in the US to supply the security forces and put them in contact with the local population, including the plaintiffs. As the Court concluded, "The allegations set forth decisions to facilitate the underlying offenses and to provide the means by which those offenses were carried out." For these reasons, the Court denied ExxonMobil's motion to dismiss to case.