John Tyler Knoblett
87 Geo. Wash. L. Rev. 740
In a series of cases decided by the Supreme Court between 2004 and 2018, human rights statutory mechanisms such as the Alien Tort Statute, the Torture Victim Protection Act (“TVPA”), and the Anti- Terrorism Act have been narrowed in reach, limiting the avenues of relief for victims of human rights abuses. In particular, those who are harmed by quasi-state actors (“QSAs”)—nonstate actors that possess many characteristics of sovereign states—no longer have any foreseeable means to hail such perpetrators into U.S. courts. This has resulted in a liability gap that runs counter to the intent of Congress when it enacted these statutes and arguably violates U.S. treaty obligations under the Convention Against Torture. Further, prior court practice regarding QSAs has led to inconsistencies in litigation practice and decisions of questionable constitutionality in light of Zivotofsky v. Kerry. With these problems in mind, Congress should amend the TVPA by expanding the definition of “foreign nation” to encompass QSAs while also safeguarding the President’s exclusive power of recognition. This change will ensure that such entities are held accountable for acts of torture and extrajudicial killings by exposing their agents to liability in U.S. courts, thereby preventing the United States from becoming a safe harbor for those who commit atrocities abroad.
