Alien Tort Claim Act Case Regarding Corporate Liability Goes to Trial for First Time

On July 27, 2007, the Federal District Court in Birmingham, AL found that Drummond Corporation was not liable under the Alien Tort Claims Act (ATCA) for the deaths of three Colombian union leaders. The families of the slain men had alleged that Drummond’s connection to Colombian paramilitary groups contributed to the men’s deaths, but the Court found an insufficient link.  Terry Collingsworth of the International Labor Rights Fund, the plaintiffs’ lawyer, said that there will be a “swift” appeal of the verdict. (1)

The notable element of this case is that it is the first one regarding corporate complicity under the ATCA to make it to trial – all of the others have been settled.  The settlements have meant that, as yet, there are no clear legal parameters for the scope of the ATCA application to corporate complicity.  The three statutory criteria for invoking the ATCA are that (1) the claim be brought by an alien; (2) that the alleged event be a tort only; and (3) that the event be a violation of international law. (2)

Although the Drummond case is the first ATCA case pertaining to corporate liability to reach trial, the US Supreme Court in its 2004 Sosa ruling acknowledged, first, that the ATCA can be used beyond its initial purpose of (roughly) prosecuting pirates, and second, that “actionable violations under the ATCA must ‘rest on a norm of international character accepted by the civilized world.’” (3)  It also stipulated a certain amount of specificity in acceptable claims. (4) 

The Sosa ruling helps to define the scope a bit.  In international human rights law, there is a concept called “jus cogens.”  Basically, this term refers to norms that are universally accepted.  It sounds like the Court might be saying that only violations of jus cogens status qualify as causes of action under the ATCA.  The problem if this is the case is that there aren’t many of these norms, and in order to invoke them violations must be extremely severe.  Some examples of universally accepted violations would be genocide and crimes against humanity.  Slavery is also a universally recognized violation of international law, and it is possible that forced labor now qualifies as a “modern form” of slave labor. (5)  This threshold means that some human rights and labor violations either might not be sufficiently severe to qualify as causes of action under the ATCA or that the scope of the international law will have to be interpreted to include a wider scope of violations.

Another area that needs clarification under the ATCA is the nature of the link between a company and perpetrators necessary to establish corporate liability.  In this case, the Court held the link between Drummond and the paramilitary force was insufficient to hold Drummond liable, even though the plaintiffs complained of a well-known link between the company and the paramilitaries. (6)  Liability could be based on a wide range of relationships between the parties, from involvement or support to aiding and abetting a group generally or aiding and abetting a specific act.  For example, UK terrorism laws require a very loose link between an individual and a terrorist organization in order to hold the individual liable under terrorism legislation.  In contrast, it is looking like a company must have “aided and abetted” the relevant party in conducting the particular act in question in order to incur liability. (7)  If this threshold is in fact the standard, one wonders if it is correct or whether it is too high.

So at present, a significant problem with setting parameters for the ATCA is that we must wait for court rulings to define them.  A further problem with relying on jus cogens as the basis for ATCA causes of action is that it usually takes many years for new standards to qualify in this category.  A third problem is the very high threshold for corporate liability.  On the upside, the verdict probably won’t further limit the applicability of the ATCA – the ruling was made on the facts. (8)  It does show, though, that the evolution of alien tort claims under the ATCA is likely to move at less than a snail’s pace.

1.  New York Times, “Alabama Company is Exonerated in Murders at Colombian Mine,” 7/27/07
2.  Littler Mendelson, “Corporate Liability for Human Rights Abuses Goes on Trial,” 7/23/07
3.  Ibid.
4.  Ibid.
5.  Ibid.
6.  Washington Post, “U.S. Firm Cleared in Deaths of 3 Colombians; Coal Operator Was Accused of Hiring Hit Men to Kill Union Leaders at Its Mine, “ 7/27/07
7.  Littler Mendelson, “Corporate Liability for Human Rights Abuses Goes on Trial,” 7/23/07
8.  New York Times, “Alabama Company is Exonerated in Murders at Colombian Mine,” 7/27/07