Alien Tort Claims in the United States

Alien tort claims in the United States Two cases

Background

The Alien Tort Claims Act (ATCA), enacted by the first United States Congress in 1789, provides as follows:

[T]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

As a matter of historical record, the ATCA was rarely invoked in the first 190 years of its existence. However, in a steady stream of decided cases, commencing with Filártiga v. Peña-Irala 630 F 2d 876 (1980), the ATCA has become a vehicle for civil litigation in the federal courts of the United States in respect of human rights abuses and other violations of public international law where the alleged conduct occurred outside the United States (e.g. in Paraguay, Bosnia-Herzegovina, Burma) and the victim is a foreign (i.e. non-United States) national.

State torture in Paraguay

Filártiga v. Peña-Irala 630 F 2d 876 (1980) (United States Court of Appeals, Second Circuit)

Background

The plaintiffs, Dolly Filártiga and her father Joel Filártiga, were citizens of Paraguay living in the United States where they had applied for political asylum. The defendant, Americo Peña- Irala, who had entered the United States under a visitor’s visa, formerly had been Inspector General of Police in Paraguay.

The plaintiffs commenced proceedings against the defendant in the United States District Court for the Eastern District of New York founded on the ATCA. In these proceedings, the plaintiffs contended that the defendant had been responsible for torturing to death Joelito Filártiga, brother/son respectively of the plaintiffs, while he was in police custody in Paraguay. The originating process was served on the defendant at the Brooklyn Naval Yard where he was in custody pending deportation from the United States for overstaying his visitor’s visa.

Disposition

State torture i.e. torture perpetrated under colour of official authority, as in the present case, constituted a violation of a universally accepted norm of public international law. 2

Accordingly, the plaintiffs being aliens, and the defendant having been served with the originating process in the United States, the District Court had jurisdiction to entertain the proceedings.

KAUFMAN, Circuit Judge [footnotes and some citations omitted] ... [880] Since appellants [plaintiffs] do not contend that their action arises directly under a treaty of the United States, a threshold question on the jurisdictional issue is whether the conduct alleged violates the law of nations. In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations. ...

[887] Although the Alien Tort Statute [ATCA] has rarely been the basis for jurisdiction during its long history, in light of the foregoing discussion, there can be little doubt that this action is properly brought in federal court. This is undeniably an action by an alien, for a tort only, committed in violation of the law of nations. The paucity of suits successfully maintained under the section is readily attributable to the statute’s requirement of alleging a “violation of the law of nations” (emphasis supplied) at the jurisdictional threshold. ... [888] [E]arlier cases did not involve such well-established, universally recognized norms of international law that are here at issue. ...

[890] In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become― like the pirate and slave trader before him―hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfilment of the ageless dream to free all people from brutal violence.

Dismissal reversed

Atrocities in Bosnia-Herzegovina

Kadic v. Karadžić 70 F 3d 232 (1995) (United States Court of Appeals, Second Circuit)

Background

The fourteen plaintiffs were Croat and Muslim citizens of Bosnia-Herzegovia, an internationally recognized sovereign state, formerly part of Yugoslavia. The defendant, Radovan Karadžić, was the president of a self-proclaimed Bosnian-Serb entity within Bosnia-Herzegovina (sometimes referred to as “Srpska”) which had not received international recognition as a sovereign state.

The plaintiffs commenced proceedings against the defendant in the United States District Court for the Southern District of New York founded on the ATCA. In these proceedings, 3 the plaintiffs contended that the defendant had commanded Bosnian-Serb military forces systematically to commit atrocities in Bosnia-Herzegovia including genocide and war crimes. The plaintiffs or deceased family members were the victims of these offences. The originating process was served on the defendant at the Inter-Continental Hotel where he was staying while on a visit to New York.

Disposition

The District Court had jurisdiction to entertain the proceedings. Genocide and war crimes constituted violations of public international law. In this regard, it was not a relevant consideration that the defendant was a non-state actor who had committed the alleged violations of public international law in the capacity of a private individual.

NEWMAN, Chief Judge [footnotes and some citations omitted] [236] Most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing the leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan. Their claims seek to build upon the foundation of this Court’s decision in Filártiga v. Peña- Irala 630 F 2d 876 (2d Cir 1980), which recognized the important principle that the venerable Alien Tort Act 28 USC § 1350 (1988), enacted in 1789 but rarely invoked since then, validly creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations. ...

[239] Karadžić contends that appellants [plaintiffs] have not alleged violations of the norms of international law because such norms bind only states and persons acting under colour of a state’s law, not private individuals. …

We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. An early example of the application of the law of nations to the acts of private individuals is the prohibition against piracy. ...

The liability of private persons for certain violations of customary international law and the availability of the Alien Tort Act to remedy such violations was early recognized by the Executive Branch in an opinion of Attorney General Bradford in reference to acts of American citizens aiding the French fleet to plunder British property off the coast of Sierra Leone in 1795. The Executive Branch has emphatically restated [240] in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law. ...

[After detailed consideration of the decided cases, the court agreed that genocide and war crimes are violations of public international law for which a private individual who is a non- state actor may be liable.]

Dismissal reversed 4