Shifting the Lens on Alien Tort Statute Litigation: Narrating US Hegemony in Filartiga and Marcos

This article revisits the two seminal Alien Tort Statute (ATS) cases Filartiga v. Pena-Irala and In re: Marcos Human Rights Litigation. Setting aside the dominant framework of accountability, the article explores the historical narratives produced in those cases. It exposes how Filartiga and Marcos recast as entirely foreign violence in which the US executive was deeply involved, due to a combination of legal and political constraints in the exercise of a controversial form of jurisdiction. Moreover, these constraints have persisted in subsequent ATS litigation, creating a trade-off between individual accountability and narratives about US hegemony. By offering an alternative account of ATS litigation and exposing hitherto ignored costs of familiar legal developments, this article challenges the assumption that broad assertions of jurisdiction are necessarily beneficial in human rights struggles, and urges international lawyers to pay more attention to the interplay among doctrine, political circumstances and historical narrative when considering and comparing human rights mechanisms.