II. Evolution of international criminal jurisdiction, individual responsibility and the definition
6. A parallel example of extraterritorial jurisdiction: the US Alian 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: “The 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.”192 At that time the rationale was to make remedies available for foreign citizens in the United States for violations of customary international law.193 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.194
The first 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
192 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).
193 John Haberstroh, The Alien Tort Claims Act & Doe v. Unocal: A Paquete Habana Approach to the Rescue, 32/2 Denver Journal of International Law and Policy (2004), 239–241.
194 See http://cyber.law.harvard.edu/torts3y/readings/update-a-02.html (last visited on 27 May 2012).
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.195 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 filed 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.196
In the case against Karadzic197, 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.”198
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 difficulty in bringing claims.
As it is noted, „[o]ne of the difficulties that confront victims of torture under color of a nation's law is the enormous difficulty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue 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
195 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. Available at: http://openjurist.org/630/f2d/876/filartiga-v-pena-irala (last visited on 27 May 2012).
196 See http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=167&Itemid=150 (last visited on 27 May 2012).
197 Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995). The case concerns torture, rape, and other abuses orchestrated by the Karadzic.
198 See http://cyber.law.harvard.edu/torts3y/readings/update-a-02.html (last visited on 27 May 2012).
suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and difficult 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." „199.
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.”200
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 confiscation of their goods.201 This
199 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).
200 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).
201 http://zsidok.network.hu/blog/zsido-kozosseg-hirei/megkezdodott-a-mav-elleni-holokausztper-chicagoban (last visited on 27 May 2012).
latter case was largely criticized for its serious historical and legal mistakes.202 The case is still ongoing and is presently in the appeals phase.203
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.204 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.
202 See http://index.hu/belfold/2010/02/12/humbug_a_mav-ellen_inditott_holokauszt-per/ (last visited on 27 May 2012).
203 http://nepszava.com/2012/01/amerika/mav-per-megvolt-a-fellebbezesi-meghallgatas.html (last visited on 27 May 2012).
204 See for instance Theresa (Maxi) Adamski, The Alien Tort Claims Act and Corporate Liability: A Threat to the United States’ International Relations, in: 34/6 Fordham International Law Journal (2011).