Ask a Tunisian

Sometimes important news occurs in places that aren’t (a) countries I’ve lived in, or (b) countries with which I am inexplicably obsessed. When that happens, I bring in external experts (see, e.g., Ask an Iranian Part I and Part II). Today I’ve asked Anis Allagui, a Tunisian expat living in North America, to fill us in on recent events in Tunisia. (Please note that while Anis is in close contact with friends and family back home, he’s not in Tunisia at the moment, so the information below may not be completely up to date on what is proving to be an incredibly fast-changing situation. Please feel free to post updates or points of disagreement in the comments.)

For those who want the short version: On Friday following weeks of protests, Tunisia’s president of 23 years, Zine El Abidin Ben Ali, fled the country for Saudi Arabia. A unity government was sworn in on Monday, but protests over the inclusion of members of the ruling party have already threatened its stability.

For those who want the long version, read on…

Q. So, what’s been going on? Let’s start at the beginning: Who was out on the streets and why?

A. When the movement began over a month ago, with the attempted suicide of Mohamed Bouazizi, it was an act of frustration in the face of bleak employment prospects. Although he held a university degree, like most of the Tunisian youth, Bouazizi was forced to assume a modest profession as a fruit vendor. The chain of events was kicked into motion when Mohamed Bouazizi was harassed by the Police for selling his produce without a proper permit from Sidi Bouzid. Although he proceeded to apply for a permit through the local government, his request was denied. In an act reflecting the sense of helplessness and hopelessness of Tunisia’s youth, he set himself on fire in front of the town hall. A few days later, Mohamed Bouazizi died from his injuries. Bouazizi’s death symbolized a growing youth population whose education far surpassed the economic opportunities available to them.

So initially, it was a youth movement for economic reform and the creation of jobs… However, this was ultimately the straw that broke the camel’s back. Bouazizi’s act of self-immolation ignited the long-suppressed sense of frustration with the senseless harassment and injustice doled out by the government on the Tunisian population. From there, this indignation has grown into a popular revolution that has swept through the whole country, both geographically and demographically. Teachers, lawyers, activists, the unemployed, students, men and women, the young and the elderly have all come out in support of change.

Q. Were any political elites associated with the protest movement?

A. No, there were no political elites in the movement. This movement is led 100% by the people, the poor, the disenfranchised and the oppressed.

Almost all high ranking positions within the Tunisian political system are filled with members of the family known as the Trabelsi/Ben Ali Clan, the Mafia, the Family, and so on. There is no popular faith nor credibility at all in the RCD ruling party, its members, its ideals, its directions, nothing!

Tunisians have never had a real chance to vote. The “elections” have overwhelmingly led to Ben Ali’s victory with, for example, more than 99% of the votes in the 1999 elections, 94% of votes in 2004, and most recently in 2009 he was “elected” with 89% of the votes. It goes without saying that this is f-ing ridiculous.

For years, Ben Ali and his cronies have literally stolen from his people and businesses i.e. stealing money from banks, government reserves, gold, etc. What happened to my uncle is an example of this tendency. He served as an exclusive sales representative of a Canadian Jet Ski and water sport equipment company. He was not wealthy, but he started to earn a bit of money, which attracted the attention of the Family. One day, he was approached by a group of men in suits working for the Trabelsi family. He was told to remain calm, if he wanted to avoid any problems. They then aggressively proceeded to explain that they intended to take his business from him. It was clear that refusal was not an option.

Under Ben Ali, any protest was immediately, and often violently, suppressed. In the end, this movement had the sole objective of using popular momentum to get rid of an evil regime.

Q. How violent have things gotten?

A. There was an intensifying presence of Presidential Police under General Ali Seriati in the streets who are still targeting civilians and looting houses and businesses. The Presidential Police has historically been used as Ben Ali’s attack dog against his people, so they aren’t necessarily the “good guys” we associate with someone in their position.

A few days before Ben Ali left the country was declared under a state of emergency, which is when the army was obliged to intervene. Ben Ali asked for the support of the army to help quell the riots, and even gave the orders to open fire into the crowds to accomplish this end. General Ammar, to whom we will be eternally grateful, didn’t agree with this order, thereby establishing the military as the peaceful protector of the people. The army even clashed with the Presidential Police on numerous occasions before, and since, Ben Ali’s departure. News feeds are filling up with Tunisians expressing their pride and support for their army.  (See picture above from Al Jazeera.)  Al Jazeera is playing videos of protesters hugging their camo-clad comrades on a loop.

Q. Can you give a little more background on the distinction between the Presidential Police and the military and their relationship to the populace?

A. This is an important distinction to make as major Western media outlets, such as CNN, have already bumbled this topic. Just by looking at this article, the first impression I have is that the photograph doesn’t show an army soldier, but a member of the Presidential Police.

The ranks of the Tunisian Presidential Police were gradually formed, doubled, tripled and quadrupled over the course of Ben Ali’s 23-year dictatorship. This weapon, 160,000 strong, was his iron fist against the Tunisian people. For a point of contrast, the army has only 30,000 soldiers. The Presidential Police operated as a governmental branch and held the responsibility of ensuring the “security” of the regime. Some of the higher-ranking members of the Presidential Police are renowned for their inhuman practice of torture, and even the Minister of the Interior himself, Abdallah Kallel, is wanted internationally for torture and crimes against humanity. Naturally, Ben Ali is the commander of these forces, so he is just as reprehensible and guilty as the drones working on the lowest level. His wife, as well as other family members, also took part in ordering the torture and killing of Tunisians.

Even though Ben Ali was an army man, the army has always been a neutral body in Tunisia, and he has never fully trusted them to carry out his agenda. This neutrality was established by Habib Bourguiba, the first president of post-colonial Tunisia (FYI: Tunisia has only had two presidents since 1956), and it is one of the rare examples existing in the world. The army isn’t aligned with any political party, and their primary responsibility is to protect Tunisia against any foreign attack. The current mission of the army, with the help of a handful of good and respectable members of the police because, yes, in spite of what I said earlier, they do exist, is to restore calm and order to the streets, which often means confronting the renegade members of the RCD and the Presidential Police.

Q. What should we expect now that a coalition government has been formed?

A. Although Ben Ali and most of his family left the country, the old regime is still present in the current “Coalition Government”, formed by long-serving Prime Minister, Mohamed Ganouchi. When he first announced the members of the new government on January 17, many Tunisians were distressed to learn that major ministerial positions (Minister of the Interior, Minister of Finance, Minister of Foreign Affairs, and the Minister of Defense), are still being held by members of the Constitutional Democratic Rally (RCD), or in plainer terms, Ben Ali’s men.

In order for things to improve, we expect to see the ruling party members tried for their crimes. This is dependent on the interim government’s willingness to cooperate in punishing the former regime members (this is including some members of the temporary government, Presidential Police, as well as the Family). For the time being, as I mentioned earlier, clashes on the street indicate that the war is far from won, but the Tunisian people with, the help of the army, are taking steps in the right direction.

Q. How optimistic are you feeling about prospects for the future?

A. Tunisians have shown that they don’t want anything to do with the evils of the RCD regime. Umar ibn al-Khattāb said: I will not calm down until I will put one cheek of a tyrant on the ground and the other under my feet, and for the poor and weak, I will put my cheek on the ground.

The whole structure of Tunisian society is sick: education, finance and distribution of wealth, health, women’s position in society, even the freedom to practice religion, were all infected during Ben Ali’s regime and are in severe need of reform. In Islam, there is a concept of distribution of responsibilities; every member in a country or a society has to play a role for the betterment of everyone else. All minorities, social castes, races, and religions have to be represented and respected, which is, at the moment, not the case. The day that all 10.5 million Tunisians without a single exception feel happy and respected, the governmental functions will be approved. Given that the symbolic death of one man has spurred a national movement for reform, I do not believe that this is difficult to do.

Q. What do you make of the Western media coverage of the revolution?

A. I will reformulate the question. What do I make of the non-Tunisian coverage of the revolution? The answer is embarrassingly straightforward. In the U.S., Martha Stewart’s busted lip and the man who was arrested for drunk driving a donkey largely dominated airwaves on January 14, 2011. Statements issued by French diplomats continued to protect Ben Ali until it was clear his position was compromised. They even had the audacity to propose “handling the situation”, as they claimed to have experience in settling protests. Their media was complicit in their silence. In the Arab news, only Al Jazeera consistently and accurately covered the protest from its very beginnings. Arab governments, out of fear of igniting similar movements, tightly controlled their local media.

On several social media sites, I have tried to answer people voicing concern over why the Western media has not yet taken a real interest in what is going on. My response is simple: “Who are they to us, and why do we need them to push forward with our cause?” The West and the rest of the world knew about the corruption and the injustice in Tunisia for decades, and they didn’t do anything but support the regime of Ben Ali. It is telling that Islamic perspectives are not being represented or even talked about in the current events, which leads me to believe that there are external factors playing a hand in the way things are being covered. I sincerely hope that we can over come this obstacle and reconnect with our lost values as we form a new generation in Tunisian politics. I believe that we have a golden opportunity to serve not only as an example to the Arab world, but to the world at large as well.

Rethinking the History of Human Rights

Some recommended reading for you: Samuel Moyn’s “Human Rights in History” in the August 30/September 6 issue of The Nation.

Moyn traces the role of human rights rhetoric in recent American political discourse and argues against the popular history of human rights as a paradigm-shifting invention, instantly resonating with a global public reeling from the atrocities of World War II. He describes instead the failure to foreground human rights during the founding of the United Nations and quotes an early commentator’s observation that human rights “died in the process of being born.” Moyn points out that if this is the case, we should be asking why they were “somehow resurrected” thirty years later, and what we should expect for the future of the human rights project.

There’s lots to consider and agree/argue with here, but for my money, one of his most interesting points concerns the linkage of international criminal law and human rights:

“It is not at all obvious that, at the time, Nuremberg and related legal innovations like the genocide convention were conceived as part of the same enterprise as the itemization of human rights, let alone falling under their umbrella—though they are now often inaccurately described as if they were a single, though multifaceted, achievement.”

Although I am not persuaded that the example he cites -of Genocide Convention progenitor Raphael Lemkin’s antagonism to the Universal Declaration of Human Rights- tells us as much about the theoretical underpinnings of either document as it does about the contentious process that produced them, I do think the philosophical compatibility of the international criminal law and human rights paradigms remains an open question.

Peanut gallery, thoughts?

Nigeria’s Queen Hajiya: A Curse On Men Puts One Fierce Lady On the Throne

Melinda sent me this interesting story:

“The palace, under a rusted corrugated roof, looks mostly like a shed. Only one delicate pair of feet in its single room is shod, and they are in black rubber flip-flops.

This is the genteel court of Queen Hajiya Haidzatu Ahmed.”

According to the article, Queen Hajiya is a traditional chief in Kumbwada Kingdom, in Northern Nigeria. (Google searching suggests that it’s more often spelled Kumbada.) It’s unusual for women to ascend to power in that conservative Muslim region. The queen’s secret weapon?

“Here, an ancient curse keeps males off the throne, according to locals. Male pretenders who dare to try will be buried within a week.”

That sound you hear is Hillary Clinton smacking her forehead and saying “a curse! Of course! Why didn’t I think of that?”

In all seriousness, though, it turns out that being a woman in a region where men are cursed off of the throne has some excellent fringe benefits:

[I]n the community Hajiya has ruled for 12 years, women get a sympathetic hearing in cases of wife beating or divorce.

“When domestic issues come to me, the way I treat them will be quite different to other traditional chiefs,” she says. “I’m a woman and I’m a mother and I have so much concern and experience when it comes to the issue of marriage and what it means for the maintenance of the home and what it means for two people to live together.” […]

Most traditional African rulers reflexively side with the male head of the household in a family dispute. So a girl resisting marriage to a much older man she doesn’t love is likely to be ordered to obey her father. A woman who complains she is being beaten is likely to be told to obey her husband.

Hajiya had one wife-beating case early in her reign.

“I told him if he ever beat his wife again, I’d dissolve the marriage and put him in prison,” she remembers. “Marriage is not a joke, and women are not slaves.”

Since that case, she has made a point of campaigning against domestic violence whenever she holds court in local communities. She says she’s never had another beating case. People know where she stands.

Not to mention that she’s a firm supporter of Take Your Daughters to Work Day:

“She keeps her grown daughter, Idris, by her side whenever she holds court, grooming her to be queen.”

Are We Ignoring Africa’s Present, or Our Own Past?

Chris Blattman has an excellent new post up about the role that access to justice should play in development and state-building:

“[…]Some people are struck by the similarity of African states to early states in Europe and Asia: weak centers struggling to exert control over wider territories; patrimonial politics; authoritarian control; coups, counter-coups, and revolutions.

I’m more struck by the dissimilarity. The core function of the state is law and order. European and Asian states provided police, military control, and access to justice (of a sort) long before they provided schools, clinics and electricity.

In Liberia, if you need a policeman you must pay him to come to you, since he has no transport. There may only be one or two policeman for an entire district. They get paid at roughly the poverty line, and may not have been trained. Most people don’t have access to a judge other than a local elder, who is not empowered by the state to make binding decisions. Courts are distant, if they exist at all in your district. If you do reach one, court can cost many days wages simply to process the forms and get a hearing, ignoring the side payments that can get your case heard quickly, or turn the verdict in your favor. The one time I looked into a murder case, in Lofa county, I wisely stopped within a few hours after discovering the perpetrator was probably the town’s chief of police.”

This is a topic that I think about fairly obsessively, (though my thoughts are not limited to Africa). Most of the humanitarian-immigration work I’ve done has been for people fleeing from the threat of criminal gangs and other non-state violent groups, so the lack of police protection in their countries of origin is generally a centerpiece of their cases.
Some of those thoughts, in no particular order:

  • We focus too much on institutions, and not enough on who gets access to them. In my experience, in many countries the police are just one more violent group that serves the interests of the elite. Aid workers and researchers who are expats from developed countries may have difficulty seeing the extent of this, because they are elites too. It can be easy to miss how much of a luxury it is to get what you’re entitled to.
  • It is a mistake to assume that the history of the justice sector in developed countries was different. It wasn’t, but the people who suffered as a result were not the ones who wrote the history books, so the issue didn’t come up that often. (Access to state protection was such a serious issue here in the United States, for instance, that we had to go and pass a whole big Civil Rights Act about it. Which had approximately no effect for a really freakin’ long time.)
  • Access to justice, particularly police reform and criminal defense work, is hindered by people’s general lack of excitement about efforts perceived as helping criminals. “More rights for thieves and murderers” is a tough sell.
  • Never underestimate how much people enjoy mob justice. And again, that was totally a thing here too, quite recently.
  • Also, human rights organizations aren’t that interested in helping cops. I think that’s largely because police are so often perpetrators of human rights abuses, so NGOs are squeamish about working on their behalf. But there’s a chicken and egg problem there: policemen themselves usually come from relatively poor and low-status sectors of society, so if no one is willing to protect them, the police are in no position to change themselves into something other than an armed group that serves the whims of the elite.

I think my own ““View I toy with but do not (yet?) hold,” when it comes to law and order, is that we can’t be quite sure if stable, impartial justice institutions are a cause or an effect of the rule of law. (They could be both, of course, but this is a conversation about where to start when we have neither.)

The thing that we like to call the “rule of law” is basically just “a system that solves problems by means other than violence.” To make that work, you need two things: (1) a system, and (2) a means to get people to buy into it.

Institutions like police forces and courts can be a good way to get people to buy into a non-violent system, but you still need a system to buy into. There has to be a there there. If there isn’t, those institutions will reinforce the thing that takes its place.

The line between “friendly neighborhood watch group” and “friendly neighborhood death squad” is a surprisingly thin one.

From the Department of Interesting Statistics: A Quarter of Amman’s Residents Are Refugees?

Apparently one in four residents of Amman, Jordan, is a refugee.

According to UN-Habitat’s recent report, State of the World Cities 2010/2011: Bridging the Urban Divide:

“With one in four of Amman’s two million residents being refugees, the Jordanian capital has the largest proportion of refugees in the world. Many Iraqis and Palestinians have sought shelter in Amman because of war. Those among them who have entered illegally strive to keep a low-profile in a bid to avoid expulsion. City authorities trying to maintain security, economic stability, and public services – in an increasingly crowded environment – see them as threats to these efforts.
The city’s education and health care systems have been burdened by the estimated 500,000 refugees who have flocked to the metropolis since 2003.”

I’m slightly skeptical of that last bit. Not because I don’t believe that half a million refugees could live in Amman – I see no reason why that is unlikely. But if 1/4 of the 2 million Amman residents are refugees, and half a million refugees have arrived since 2003, then that would mean that Amman had no significant refugee population before the Iraq war began. And that strikes me as a bit odd, given the country’s history.

Does anyone have an explanation? If I had to guess, I would say that it might be because the numbers came from UNHCR, and so might have excluded Palestinian refugees who are under UNRWA’s mandate. But then again, the report mentions “Iraqis and Palestinians,” which suggests that Palestinians weren’t excluded from the count after all. Thoughts?

WTF Friday, Better-Sunday-Than-Never Edition

The latest from our best-beloved Intern Chris:

  • Okay, so it’s kind of a cheap shot to make fun of “We Are the World” for Haiti, but wtf is Vince Vaughn doing in this picture? Dude doesn’t even sing. Does Haiti really need the star of Dodgeball right now?
  • Just to highlight another point about Kristof’s column “Orphaned, Raped and Ignored,” he starts it by saying, “Sometimes I wish eastern Congo could suffer an earthquake or a tsunami, so that it might finally get the attention it needs.” WTF?
  • Kim Jong Il’s attempts to ruin his own economy lead to violent resistance.
  • Oxy-morons try to “adopt” Haitian “orphans” that have parents.
  • Investigation backed by Guinean junta absolves its own leader, Moussa Dadis Camara, of blame for September massacre despite various findings to the contrary. Guess we’ll just have to go with the honor system.
  • Chinese human rights lawyer is missing after security agents tell his family they want to see him for a “brief chat.” Think they’re talking Super Bowl picks? Maybe the Lost premiere?

Bonus Links:

"Human Rights in Crisis" Film Festival

On February 1st, a.k.a. “next Monday,” the Pulitzer Center on Crisis Reporting will present “Human Rights in Crisis,” a series of documentaries about human rights issues around the world, at Georgetown University Law Center. (Go Hoyas.) It looks like it will be a very interesting evening -if I was in DC, I’d definitely go check it out.

There will be a Q&A session with journalists, and a screening of these neat-o sounding projects:

It runs from 6-8 PM, in the Hart Auditorium, 600 New Jersey Ave. NW, and I have heard rumors that there will be a reception with tasty snacks afterwards. (Worth considering. In my experience, G-town knows from snacking.)

If any of you plan to go and would like to do a guest post about it, shoot me an email.

So This Seems Pretty Cool: iPhone App to Train Refugees to Do Outsourced Tech Jobs

Samasource, a San Francisco-based nonprofit that “leverages technology to create jobs for the next billion,” has partnered with CARE International on an innovative project that combines job training with job access for refugees in Kenya’s Dadaab refugee camp.

CARE has equipped two technology centers in the camp with broadband links, computers, and other infrastructure. They’ve selected a small group of refugees who will be trained in “marketable computer and research skills,” and partnered with outsourcing organizations to provide jobs. For now, that will be Dolores Labs, which “takes short simple tasks such as translation, transcription, or content moderation and serves them to workers in real-time, creating an on-demand, 24/7 workforce.”

Samasource has also developed an iPhone app, Give Work, which allows fancy people with fancy phones to help with the refugee workers’ training. As far as I can tell from their website, it works like this: the refugee trainee is given an “outsourced” task, such as checking the copyright restrictions on an internet-sourced photograph. The same task goes out on the Give Work network, where several iPhone users can also select it, and do the task themselves, creating a kind of crowdsourced accuracy measure of the task’s “right” answer. The refugee trainee’s results are compared to the crowdsourced answers. Once the refugee has developed a consistent track record of correct answers, he or she will graduate to paid outsourced jobs.

A few reasons why I think this is cool:

  1. It’s not a “traditional craft.” Seriously, I have had it up to here with the idea that making baskets/beads/carvings/blankets/weavings is the way out of poverty for people in the developing world. The weird Noble-Savage overtones leave a bad taste in my mouth. So does the emphasis on work for poor people that is aesthetically pleasing to the wealthy. It’s all a bit Marie-Antoinette’s-shepherdesses for me.
  2. It’s a skill with positive externalities. I don’t know how long this project or its jobs will last, but the skills this will give refugees will continue to have value even if the specific jobs evolve over time. The technical stuff will be good, but I think that the experience with Western consumer culture will be even better. The training program will expose the refugees to the way the iPhonerati approach and solve problems, which should make them more able to participate in the outsourced service economy in other ways as well. That’s a tremendously valuable skill set, one I’d take over basket-weaving any day.
  3. It’s cheap in the right ways. For all that the iPhone thing is a little bit gimmicky, it’s a great use of technology. Getting free feedback from lots of people will not only save the cost of hiring trainers, it will also provide better quality feedback than one or two people could.
  4. It’s about jobs, in refugee camps. Among the many, many, many things that I think are terrible about the “herd them into camps and leave them there forever” model of refugee-hosting, walling refugees off from legitimate jobs is one of the worst. So any program that takes the international job market directly into a refugee camp is on my good list until further notice.

I don’t have an iPhone, so I can’t try this app out for myself. Do any intrepid readers want to take Give Work for a spin and report back?

Who’s Afraid of the Big, Bad Market?

Photo of non-invisible hand from Lauren Merek

I have a question: Why do so many people respond so negatively to the idea of markets?

I’m serious. It seems like I hear people conflate “market” with “unfair and exploitative” all the time, and I would genuinely like to know why that is.

I’m not asking whether markets are perfect, or infallible. This is not a question about whether Alan Greenspan or Milton Friedman were right in their view of how to design a financial system.

This is a question about emotions -about why so many people have such a reflexive distaste for any solution described as “market based,” or “privatized.” What is it about those concepts that is so scary?

I don’t think it’s an actual discomfort with exchanging goods or services for money. We all engage in market transactions all the time, every day. Markets are where we get everything from our toothpaste to our cheesy Richard Curtis movies, but I don’t think many people feel oppressed or exploited every time they buy a tube of Colgate Total.

It strikes me that the root of people’s fear might be their worry that markets don’t care about people. That’s correct: last time I checked, markets did not care about anyone. In that way they are quite similar to rocks, trees, and vampires who have not been cursed by Gypsies.

Perhaps that offends our basic sense of how social norms should work. Is the problem that we don’t like the idea of people interacting with each other without considering each others’ feelings, and needs as human beings? Or its it that we worry markets will upset the social hierarchies by buying community status instead of earning it? (That’s the heart of the classic complaint about “new money,” after all.)

Am I right? Or is it something else? I am genuinely asking here: if you are someone who hears “water privatization” and immediately has concerns that you do not have when you hear “government-run utility,” why is that? What is it that you worry about? (If it helps, you can just free-associate adjectives in the comments section.)

In Which a Well-Meaning Reader Tip Is Punished with "ATCA for Dummies" (Sorry)

Alert reader / global health enthusiast Dominic Montagu drew our attention to the petition for cert before the Supreme Court in the Abdullahi v. Pfizer case.

For those who are not Alien Tort Claims Act groupies, this is the lawsuit arising out of Pfizer’s clinical trials of the antibiotic Trovan, tested on Nigerian children during a meningitis outbreak. Apparently, participants in the trial were not informed of the potential risks associated with the treatment, nor of the fact that MSF was offering non-experimental meningitis treatment for free. The claims allege that Pfizer therefore failed to follow informed consent guidelines. For a far more detailed rundown, see Tom Bollyky’s post at the Center for Global Development’s global health policy blog.

As Bollyky points out, the case raises a host of issues in the global health realm: Would a finding of legal liability discourage clinical trials, thereby retarding progress in treating serious illnesses? Would a more rigorous standard for informed consent prevent testing among certain populations? Fascinating questions, but I’m a lawyer, so instead you’re getting a discussion of civil procedure. Buckle up.

After a whole lot of litigation in exciting venues like the Nigerian Federal High Court and the Southern District of New York, the case made its way to the Second Circuit Court of Appeals, which considered whether the claims belong in U.S. federal court at all. This is an open question, because the Nigerian plaintiffs are suing under the Alien Tort Claims Act, which provides a narrow right for foreign citizens to sue in U.S. federal courts where they have suffered damages as a result of a “violation of the law of nations or a treaty of the United States.”

What does this mean, you ask? Well, no one’s really sure. When the statute was written in 1789, recognized violations of the law of nations were pretty much limited to piracy and poking an ambassador with a sharp stick. Then the law went into hibernation for roughly two centuries. When it reappeared on the scene in 1980 in a case involving state torture, the Second Circuit held that violations of contemporary customary international law, comparable in nature to the aforementioned old-timey violations of piracy and ambassador-baiting, could serve as the basis for ATCA suits.

It’s all gotten very complicated since then, with most of the fuss focused on two interrelated issues: (1) Who can be sued under ATCA? and (2) How do we tell if something’s a violation of the law of nations?

The first question gets tricky because traditionally, only states were subject to international law, so only states could be sued for failure to comply. But egregious violations of international law aren’t just for states anymore; these days, everyone from megalomaniacal rebel leaders to multi-national companies is in on the fun. The application of the ATCA to these actors is still unsettled, but some courts have been willing to extend liability to non-state actors like corporations where there was a sufficient nexus to state action, or in cases involving violations of jus cogens (rough translation: “omg, super-serious!”) norms of international law.

The second question is mostly only a problem because U.S. federal judges seem congenitally incapable of looking up the definition of “customary international law.” (Hint to Judge Wesley: Try the ICJ Statute next time you get stuck on that whole treaties vs. custom thing. Seriously, it worked for me.)

Which brings us back to the Second Circuit. Earlier this year, it ruled that the plaintiffs could bring their case against Pfizer under the ATCA. Let’s guess why, shall we?

Is it:
(a) Because drugs are bad!
(b) Because the customary norm of international law that prohibits nonconsensual medical experimentation on humans says that Pfizer’s failure to get its paperwork in order is EXACTLY THE SAME as Mengele’s attempts to create conjoined twins by sewing Holocaust victims together.
(c) Because the Nigerian government’s involvement in the trials was sketchy enough that there’s arguably state action.
(d) Because the Second Circuit is hellbent on expanding the scope of ATCA beyond all recognition.
(e) b and c (and maybe d).

If you guessed (e), strong work. The Second Circuit established the existence of “a norm forbidding nonconsensual human medical experimentation” that is “every bit as concrete—indeed even more so—than the norm prohibiting piracy that Story describes, or interference with the right of safe conducts and the rights of ambassadors.” -And, while they were at it, conducted what I consider to be a backasswards analysis of the state action requirement and found that the Nigerian government’s assistance with Pfizer’s bad acts was enough to allow the suit to proceed.

So, now it’s up to the Supreme Court, which has yet to rule on the availability of ATCA suits against corporate defendants. Roger Alford over at Opinio Juris points out that this may be the ideal test case for the corporate liability issue. Stay tuned…