Liability of Secondary Actors under the Alien Tort Statute: Aiding and Abetting and Acquiescence to Torture in the Context of the Femicides of Ciudad Juarez
Simmons, William Paul, Yale Human Rights and Development Law Journal
Since 1993, more than 400 women have been murdered in Ciudad Judrez, Mexico. Few, if any of these crimes have been solved, largely because local Mexican officials have failed to adequately investigate them. This Article argues that femicide victims could hold those officials civilly liable as third parties for these femicides in U.S. federal courts under the Alien Tort Statute (ATS). Although aiding and abetting liability is the most common form of third-party liability sought in ATS cases, several high profile cases have challenged whether it should exist under the ATS. The author agrees with many courts and scholars that aiding and abetting liability should be sustained. However, the author argues that none of the previously proposed standards for aiding and abetting would reach the Mexican officials. Instead, the author proposes "acquiescence to torture" as an innovative form of third-party liability. Acquiescence to torture, as it has been defined in U.S. non-refoulement cases, would broaden the scope of the ATS to allow a suit against Mexican officials for their failure to adequately prevent or investigate the femicides in Ciudad Juarez.
[dagger] William Paul Simmons, assistant Professor of Political Science, Arizona State University. Ph.D., Louisiana State University 1996. This Article is dedicated to Diana Washington Valdez and Lourdes Portillo, courageous and talented women who have been instrumental in calling attention to the femicides in Ciudad Juarez. The author is grateful to Rebecca Coplan and Stacy Nykorchuk for their tireless and invaluable research assistance. Thanks also to Sarah Bennett, Zeenat Hasan, and several classes of students who helped me develop the ideas in this Article while completing problem-based learning assignments. Special thanks to the fine editorial team of the Yale Human Rights & Development Law Journal.
Since 1993, more than 400 women have been murdered in Ciudad Juarez, Mexico. Over 120 of these murders have been deemed sexual homicides. Several high profile national and international reports have placed blame on the local Mexican authorities for failing to exercise due diligence in the investigation, prosecution, and punishment of these crimes and for failing to take reasonable steps to prevent these murders. (101) The "femicides" and the local Mexican government's poor response have been widely publicized internationally by groups in Ciudad Juarez, Mexico, the United States, and other countries through organized protests, petition drives, and other actions. (2) Several family members and NGOs have initiated cases in the Inter-American Commission of Human Rights against the national government of Mexico (3) and these will most likely lead to action by the Commission and, eventually, by the Inter-American Court of Human Rights. However, the Inter-American Commission and Court have both been faulted for their lengthy procedures, and the Commission, especially, has a poor record of state compliance with its decisions. (4) These institutions can make rulings against national governments, but they cannot hold specific individuals in the Mexican government directly accountable. This paper argues that in order to hold local Mexican officials directly accountable for failing to adequately investigate and prevent the femicides, victims of the femicides or their families could sue the officials in U.S. federal courts on a theory of third-party liability under a once obscure American law, the Alien Tort Statute (ATS). (5)
Although the ATS was passed as part of the Federal Judiciary Act of 1789, it was relatively unused and unknown until 1981. Since then, victims of human rights abuses from dozens of countries have used the ATS to bring civil suits in U.S. courts against governmental officials and multinational corporations for a range of abuses. The 2004 Supreme Court case Sosa v. Alvarez-Machain cleared up, for the most part, the most fundamental legal issue in ATS jurisprudence: whether or not the ATS affords new subject-matter jurisdiction. …