A parallel example of extraterritorial jurisdiction: the US Alian Tort StatuteAlian Tort Statute

The Alien Tort Statute, or Alien Tort Claims Act, is a section of the Unites States Code, adopted in the United States in 1789, originally in the Judiciary Act. Para 1350 of the USC says: “[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.”²⁰⁰

At that time the rationale was to make remedies available for foreign citizens in the United States for violations of customary international law.²⁰¹ However, until the 1980s only very few cases were carried out based on this provision.

Beginning with the Filartiga-case, increasing international concerns over human rights violations brought litigants to seek redress from the Alien Tort Statute.²⁰²

200 28 USC § 1350 – Alien’s action for tort, available at http://www.law.cornell.edu/uscode/

text/28/1350 [last visited on 27 May 2012]

201 John HABERSTROH: The Alien Tort Claims Act & Doe v. Unocal: A Paquete Habana Approach to the Rescue. Denver Journal of International Law and Policy, 2004/32/2. 239–241.

202 S. http://cyber.law.harvard.edu/torts3y/readings/update-a-02.html [last visited on 27 May 2012]

The fi rst case that paved the way for a more extensive application of the Statute was the Filartiga v Pena-Irala, in 1980. Pena was the Inspector General of Police in Asunción, Paraguay, and was allegedly responsible for torturing and murdering Filartiga’s son in retaliation for his father’s political activism and views. The Filartiga family had been living in the US and was informed of the presence of Pena in the territory of the United States and brought a case against him under the Alien Tort Statute.

The District Court dismissed the case for lack of jurisdiction, arguing mainly that the law of nations does not entail a states’ treatment of its own citizens.

However, the US Court of Appeals reversed the decision by saying that the law of nations does contain state-sanctioned torture, and being free from torture developed into a norm of customary international law.²⁰³ Filartiga won the case and was awarded 10,4 million USD for damages.

The Statute has provided ground for cases that resemble universal jurisdiction cases and are obviously linked to international crimes, but on the level of civil law claims. A civil claim for instance was fi led against Taylor Jr., son of Charles Taylor after he was apprehended on US territory, tried for torture and sentenced for 97 years of imprisonment in 2009. After his conviction, civil organizations in the US brought a claim against him based on the Statute and won, courts awarding over 22 million USD for damages.²⁰⁴

In the case against Karadzic²⁰⁵, the court held that “the ATCA [Alien Tort Claims Act] reaches the conduct of private parties provided that their conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private parties.”²⁰⁶

As is stated in Wiwa v. Royal Dutch Petroleum Co., the acknowledged aim of the Statute is to enable victims of torture to sue their tormentors, recognizing the diffi culty in bringing claims. As it is noted, „[o]ne of the diffi culties that confront victims of torture under color of a nation’s law is the enormous diffi culty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue

203 Dolly M. E. Filartiga and Joel Filartiga, Plaintiffs-Appellants, v. Americo Norberto Pena-Irala, Defendant-Appellee, No. 191, Docket 79-6090, United States Court of Appeals, Second Circuit.

Decided June 30, 1980, Paras 24 and 32. S. http://openjurist.org/630/f2d/876/fi lartiga-v-pena-irala [last visited on 27 May 2012].

204 S. http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=167&It emid=150

[last visited on 27 May 2012].

205 Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995). The case concerns torture, rape, and other abuses orchestrated by Karadzic.

206 S. http://cyber.law.harvard.edu/torts3y/readings/update-a-02.html [last visited on 27 May 2012]

in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place. It is not easy to bring such suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and diffi cult to administer. In addition, because they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they are brought.

Finally, because characteristically neither the plaintiffs nor the defendants are ostensibly either protected or governed by the domestic law of the forum nation, courts often regard such suits as «not our business».„²⁰⁷.

This intention was further strengthened through the Torture Victim Protection Act, passed in 1991. Notably, the Act „ convey[s] the message that torture committed under color of law of a foreign nation in violation of international law is «our business», as such conduct not only violates the standards of international law but also as a consequence violates our domestic law. In the legislative history of the TVPA, Congress noted that universal condemnation of human rights abuses »provide[s] scant comfort« to the numerous victims of gross violations if they are without a forum to remedy the wrong. […] This passage supports plaintiffs’ contention that in passing the Torture Victim Prevention Act, Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts. If in cases of torture in violation of international law our courts exercise their jurisdiction conferred by the 1789 Act only for as long as it takes to dismiss the case for forum non conveniens, we will have done little to enforce the standards of the law of nations.”²⁰⁸

Another interesting aspect of the Alien Tort Statute is the acceptance of corporate liability, although there is a split of opinion as to the scope of it.

Important cases had been based on the notion of corporate liability, such as the Bauman, et al. v. DaimlerChrysler, et al., in which twenty-two plaintiffs claimed the automaker cooperated with the Argentinean junta during the 1970s “Dirty War”, the above mentioned case against Shell Oil, or cases against national railway services for their alleged role in deportations, such as the case against the Hungarian Railway Services on behalf of victims of the Hungarian Holocaust for participating in the deportation of Jews during the Second World War and

207 See Wiwa v. Royal Dutch Petroleum Co., F.3d, (2nd Cir. 2000), quote available at: http://cyber.

law.harvard.edu/torts3y/readings/update-a-02.html [last visited on 27 May 2012].

208 See Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000), quote available at: http://cyber.

law.harvard.edu/torts3y/readings/update-a-02.html [last visited on 27 May 2012]

confi scation of their goods.²⁰⁹ This latter case was largely criticized for its serious historical and legal mistakes.²¹⁰ The case is still ongoing and is presently in the appeals phase.²¹¹

Cases based on the Alien Tort Statute can thus be considered as the civil-law mirrors of universal jurisdiction cases. The rationale for the establishment of such jurisdiction in the US is very similar to the rationale of universal jurisdiction.

Both establish jurisdiction for a domestic court to try cases that are not triggering ordinary jurisdictions: neither the victim, nor the offender or the place of the commission of the acts are linked to the forum state, however, the reasons are the same: to prevent offenders escape liability.

Interestingly, criticism against both basis of jurisdictions are also similar:

there is an increasing number of legal literature in the US raising attention on the international implications of the Alien Tort Statute and to the fact that it harms US external relations.²¹² Obviously, in both cases, the judgment can only be enforced in case the offender is on US territory, which is another similarity with universal jurisdiction cases.

The US Alien Tort Statute is thus another expression of the intention to provide jurisdictional possibility to initiate cases concerning serious violations of international law. Although this form of jurisdiction is presently only available in the United States and does not concern criminal liability, its message is clear and, even together with its noticeable downsides, obviously plausible. At the same time the exercise of such form of extra-territorial jurisdiction by a state that has for fear of involvement of its own nationals often viciously attacked and criticized universal jurisdiction and has not become party to the International Criminal Court, two instruments aimed at providing very similar goals to the Alien Tort Statute, could be seen rather anomalous. Evenmore, as many American writers noted, the scope of protection of human rights came under a different light after

209 http://zsidok.network.hu/blog/zsido-kozosseg-hirei/megkezdodott-a-mav-elleni-holokausztper-chicagoban [last visited on 27 May 2012]

210 http://index.hu/belfold/2010/02/12/humbug_a_mav-ellen_inditott_holokauszt-per/ [last visited on 27 May 2012]

211 http://nepszava.com/2012/01/amerika/mav-per-megvolt-a-fellebbezesi-meghallgatas.html [last visited on 27 May 2012]

212 See for instance Theresa (Maxi) ADAMSKI: The Alien Tort Claims Act and Corporate Liability:

A Threat to the United States’ International Relations. Fordham International Law Journal, 2011/34/6.

the 9/11 attacks, meaning the United States has come to its limits in this respect.²¹³ Taking these opinions into account when it comes to interest of US citizens and notwithstanding the otherwise plausible message the Alien Tort Statute was intended to send, criticism of applying double-standards could easily be attached to this US practice.

213 „Stewart Baker, the former general counsel of the National Security Agency, concludes «[w]

e have judicialized more aspects of human behavior than any civilization in history, and we may have come to the limit of that.» Consequently, in security matters contemporary American discourse is pervaded by the notion that «[t]he time for legal maneuverings, extraditions and trials is past.»” DUNLAP (2001) op. cit. 18.

INTERNATIONAL CRIMINAL LAW

The present chapter examines the common problems that may arise during domestic application of international law. These problems will be discussed from different perspectives: fi rst, from the perspective of inherent dilemmas and issues of international law-making, then examining common denominators and features of national legislation that may be of relevance for the often problematic application of international law, and fi nally analyzing the inherent hurdles of domestic jurisprudence through examining approaches and attitudes of domestic courts towards international law during its application, as well as the interaction between jurisprudence of international and national judicial bodies.