On October 11, the U.S. Supreme Court heard arguments in Jesner v. Arab Bank, a case that could settle whether the Alien Tort Statute (ATS), a 1789 law that allows non-Americans to sue in U.S. courts for harms that violate international law, applies to corporations. The justices appeared divided, with some observers suggesting that the presumed swing vote, Justice Anthony Kennedy, is leaning toward corporate immunity. As transnational corporations expand their footprints worldwide, meaningful access to justice for victims of corporate complicity in human rights abuses has proved elusive—and a decision for Arab Bank would put it even further out of reach.
The plaintiffs in Jesner are noncitizens who were injured or are survivors of those killed in attacks in the West Bank and Gaza between January 1995 and July 2005. They claim that the defendant, Arab Bank of Jordan, “knowingly used its New York branch to collect donations, transfer money, and serve as a ‘paymaster’ for international terrorists,” thereby violating international law. The bank was found liable for harm to U.S. citizens under the Anti-Terrorism Act, but that law does not cover foreign plaintiffs, whose only available remedy in U.S. courts is the ATS. The Second Circuit dismissed their claim, holding that the ATS does not apply to corporations, and the plaintiffs appealed.
The ATS was enacted to provide a federal civil remedy for violations of the “law of nations,” at that time applicable to cases involving ambassadors, safe passage, and piracy. It was largely dormant until 1980, when the family of a Paraguayan man who was tortured and killed in Paraguay years earlier filed a lawsuit in New York against a former Paraguayan official who was then living in Brooklyn. In Filartiga v. Peña-Irala, the Second Circuit set a landmark precedent by holding the defendant liable for damages. Since then, the ATS has been used by human rights advocates to seek justice against serious abuses by government officials and corporations who aid and abet human rights violations. The
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