Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute

Continuing with the discussion from a previous post, there are currently a number of companies, many of them based in the UK, selling fraudulent bomb and narcotic testing devices to nations such as Iraq, Mexico, and Thailand. These “bomb detectors” are worthless, although the governments who purchase them believe they can do all sorts of miraculous feats, based upon the manufacturers’ claims. As a result of the sniffer devices’ failure to detect the presence of bombs, and the subsequent failure of authorities to identify and prevent the detonation of car bombs and other explosive devices, documented human deaths have resulted.

Potentially, then, fraudulent sniffers such as the ADE651 and the GT200 provide the basis for a civil claim in U.S. courts against the devices’ manufacturers, based upon the Alien Tort Statute (ATS).

Under Sosa v. Alvarez-Machain, the ATS provides a jurisdictional basis for causes of action that are “specific, universal, and obligatory.” This means, roughly, violations of international law such as torture, genocide, slavery, crimes against humanity, and other acts of a similar level of “badness” can be targeted (“subject to vigilant gatekeeping,” etc.).

While fraud on its own, with only commercial damages, clearly won’t qualify as the sort of international norm violation that creates ATS jurisdiction, fraud on the scale of the GT200 or ADE651 that leads, directly or indirectly, to human deaths is more in line with previous international law violations that U.S. courts have recognized as valid ATS causes of action. But showing that the sale of fraudulent bomb detectors is a tort in violation of international law isn’t the only obstacle — any would-be ATS plaintiff would also have to contend with the fact that Global Technical and other producers of the dowsing rods are private corporations run by private individuals. Although corporate liability under the ATS been the subject of intense scrutiny over the past few years, and gallons of academic ink have been spilled in debating the validity of corporate responsibility for human rights violations, almost all previous ATS cases have been based upon some sort of joint venture theory, alleging that a corporation bears secondary liability as a result of the corporation’s joint action with or aiding and abetting of a state actor.

Although ATS jurisprudence is currently in the midst of Circuit disarray, if the Supreme Court accepts the cert petition pending before them for Pfizer v. Abdullahi, we should get a much better idea on how the issues in a hypothetical ADE651 case would play out.

The two major legal hurdles in Pfizer v. Abdullahi would be similar to the two predominant issues in an ADE651 case, although the facts between the two differ significantly. First, did the companies that produced the dowsing rods violate an international norm capable of violation by a private party, or, if not, did they act sufficiently in concert with foreign states so as to be considered a “state actor”? Second, is the selling of fraudulent and potentially deadly ‘bomb detectors’ a violation of international law which is actionable under the Alien Tort Statute?

Can selling fraudulent bomb detectors result in private actor liability?

Starting with Kadic, ATS suits against a private actor must show either (1) the tort does not require state action to be a violation of international law, or (2) if state action is required, whether the private actor can be hooked for joint action or aiding and abetting with a state actor. From Unocal, the best precedent we have to date, we have a rough guide that although most violations of international law can only be conducted by states and not individuals, certain “egregious” acts are a violation of CIL even if conducted by a private party. Such acts include slavery, genocide, and war crimes, or, to a limited extent, other bad acts (like rape) that are committed in furtherance of the primary egregious crimes, like genocide.

Whether or not international law violations by private actors will always be limited to that category is uncertain; at any rate, not-completely-ludicrous arguments could be made that the act of knowingly procuring dangerous military equipment for foreign states that results in needless civilian deaths is a violation of international law even absent state complicity.

Even if the above can’t be shown, a joint act or aiding and abetting theory of liability would still be a possible option. From the facts know, there does appear to be substantial evidence that state governments have been acting in concert with dowsing rod suppliers to carry out the scheme. From the original article,

Aqeel al-Turaihi, the inspector general for the Ministry of the Interior, reported that the ministry bought 800 of the devices from a company called ATSC (UK) Ltd. for $32 million in 2008, and an unspecified larger quantity for $53 million. Mr. Turaihi said Iraqi officials paid up to $60,000 apiece, when the wands could be purchased for as little as $18,500. He said he had begun an investigation into the no-bid contracts with ATSC.

Essentially, there is a conspiracy going on here between ATSC, Ltd. and the Iraqi government to sell useless plastic objects at a grossly inflated price. From here, it isn’t too far a leap to reach the conclusion that ATSC knowingly sold dangerously defunct equipment to corrupt government officials, therefore placing civilians in imminent danger due to their faulty belief that they will be able to know when explosives are present.

Recently in The Presbyterian Church of Sudan v. Talisman Energy, Inc., the Second Circuit announced that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” In contrast to most other ATS cases, showing that an ADE651 defendant possessed the requisite mental state will not be a particularly tricky proposition. I think it’s a more than fair assumption that ATSC and Global Techniques’ owners know damned well that the products they are selling are worthless snake oil, and that it wouldn’t be all that difficult to convince a jury of that fact.

Granted, dowsing rod producers could argue that their “purpose” was simply to sell a product, not commit human rights violations. The Talisman case was dismissed “because plaintiffs presented no evidence that the company acted with the purpose of harming civilians.” However, this is not the case of a corporation engaging in a legitimate business in a region where its partners conduct human rights abuses as a means of carrying out that business enterprise. As with the Zyklon B Case , you can’t argue you aren’t guilty of genocide because you “only intended to sell lice-remover,” when you know damned well your customers ain’t concerned with delousing.

A bigger concern would be that it appears the governments that are buying ADE651 sensors genuinely believe the devices work as advertised. Therefore, the States do not have the necessary intent of purposefully or knowingly endangering their population. So in essence, ATSC is only assisting governments to engage in corrupt acts — they are not aiding and abetting a state’s intentional endangerment of its citizens. At the very least, that would rule out Conspiracy liability, which requires furtherance of a “joint purpose.” However, although it’d take a lot more space to discuss the issue than I have here, I’m going to assume for now that courts are not going to accept the “it’s not a violation of international law because we were tricking states into killing their own citizens” defense. (And anyway, if the Court takes cert on Pfizer, we’ll shortly have an authoritative answer on the question of whether there can be corporate liability when there’s only cursory state involvement.)

Was there a violation of a norm of international law with the requisite specific, universal and obligatory character?

I’ve been jumping the gun a bit by asking whether or not ATSC or Global Techniques can be held up on a theory of primary or secondary liability. That’s all meaningless until it’s also shown that the tort they are alleged to have committed is also a violation of a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features” of such founding-era international crimes of piracy and beating up diplomats for sport.

Courts have held that the specificity and ease of definition of the international norm alleged to be violated are the “meat and potatoes” of ATS claims. Courts don’t really like plaintiffs with harebrained theories alleging that a corporation’s random activities violated a nebulous “right to health” or “right to not have their environment destroyed,” or other similar claims.

In Pfizer, the tort that plaintiffs alleged was committed in violation of international law is “the norm against nonconsensual medical experimentation.” Thanks to Nuremberg and the general legacy of the Holocaust, for the Pfizer plaintiffs, it will be slightly easier to prove that international law prohibits experimenting upon humans without their consent, and possibly that this norm is so firmly entrenched as to be capable of violation by private actors alone. Throw around the word “Mengele” a few times, and heck, you might even cause Scalia to at least pause for a couple seconds before he goes ahead and rejects the claim.

In contrast, there is not really any similar international condemnation of “selling bomb detecting devices that don’t work.” So the norm used as the basis of the tort will necessarily be of a more generalized character, based either in humanitarian or human rights law. Although humanitarian law might offer some possibilities, at least in Iraq or for other cases where the dowsing rods are bought for use in quasi-combat zones, that would still be pretty tricky to pull off. Though not completely analogous, the problems of applying war crimes to private military contractors shows the sort of international legal morass that results in. Or, if you wanted to get even more creative, you might borrow provisions from the Rome Statute, such as Art. 8(2)(b)(xx), which prohibits “employing… materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.” Selling and using phony bomb detectors is, if you squint at it funny, employing materials that cause unnecessary suffering to civilians who are killed or maimed in resulting bomb blasts.

As for human rights violations, they are probably just as unsatisfactory. Although a “right to security” appears in seven international and regional human rights treaties, such as Art. 9(1) of the ICCPR, these norms are “universal but not obligatory,” and thus do not provide a firm enough basis for ATS claims.

Still, many ATS claims have been brought alleging violations of international norms far stranger than the ADE651 hypo. Like the suit against UAE officials for abuses of underage camel jockeys, Mother Doe ex rel. R.M. v. Al Maktoum, (S.D. Fla., July 30, 2007)(and no, “underage camel jockeys” is NOT a euphemism), and claims against companies selling bulldozers that were used to mow down Palestinian buildings, Corrie v. Caterpillar, Inc., (9th Cir. 2007). So it wouldn’t be the most objectionable ATS claim ever brought, at least, and if Pfizer does go before the Supreme Court, and an expansive opinion is returned (highly unlikely), then there would be plenty of wiggle room available for an ADE651 case to be brought forward. However, as things currently stand, the odds of such an ATS suit succeeding are not particularly good.

-Susan

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