Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution

John F. Murphy[*]

INTRODUCTION

On July 17, 1998, delegates to a United Nations–sponsored conference in Rome, Italy adopted a statute in treaty form for an international criminal court.[1] The future effectiveness of this tribunal, however, was cast in serious doubt by strong U.S. opposition to several provisions in the statute.[2] According to newspaper reports, David Scheffer, the head of the U.S. delegation, stated that “this is the court we and others warned of, strong on paper and weak in reality.”[3]

The overwhelming majority of the delegates from 160 countries attending the conference opposed the U.S. position. In a vote on whether to accept the draft statute without further amendments proposed by the United States, the count was 120 countries in favor, 7 opposed, and 21 abstaining.[4] Besides the United States the countries reportedly voting against the draft statute were Iraq, Libya, Qatar, Yemen, China, and Israel.[5]

Even if the United States were to lend its full support to the establishment of a permanent international criminal court, however, its success would hardly be assured. For one thing, it is uncertain that the obstacles that have hindered the prosecution of international crimes before national tribunals could be overcome by an international criminal court.[6] The mixed

record of the tribunals established by the U.N. Security Council for Former Yugoslavia and Rwanda,[7] which, at least in theory, have the full support of all five permanent members and the considerable enforcement powers of the Council behind them, illustrates some of these difficulties.[8]

In any event, the prosecution of international crimes will remain a difficult and, at best, an intermittently successful undertaking. It may therefore be useful to consider an approach that has received relatively little attention[9] as compared to criminal prosecution: civil suits against those who commit international crimes and those who sponsor them. Although such suits are by no means a panacea, they may afford a measure of justice to the victims of international crimes and their families and serve as an additional deterrent to future crimes. Most importantly, civil suits may allow recourse against the governments that sponsor international crimes where criminal prosecution is not an option. On the other hand, for reasons we will explore, governments, including the U.S. Government, have resisted both civil suits against individual perpetrators and those against state sponsors, at least if they are based on acts occurring outside of the territory in which the court sits.

Accordingly, after a brief discussion of the nature of international crimes in Part I, the Article in Part II considers some reasons why it has proven so difficult to prosecute them. Then, in Part III, it evaluates efforts to hold the perpetrators of international crimes civilly liable for damages. Part IV proposes some steps that might be taken, at both the international and national levels, to enhance prospects for successful civil liability suits. Lastly, the Article sets forth some concluding observations.

I. A BRIEF EXCURSUS ON INTERNATIONAL CRIMES

At the outset it is necessary to stress that the field of international criminal law is an area of considerable definitional ambiguity.[10] Indeed, in the

view of some eminent scholars, “international criminal law in any true sense does not exist.”[11] Rather, under this “positivist” approach, so-called international crimes like piracy are classified solely as municipal law crimes, “the only question of international law being the extent of a state’s jurisdiction to apply its criminal law to an accused foreigner acting outside the territorial jurisdiction of the prescribing state.”[12] In contrast, under the “naturalist” model, certain crimes, like piracy, are considered crimes against international law “seeking only a tribunal with jurisdiction to apply that law and punish the criminal.” [13]

In large part this issue has lost its poignancy because of the establishment of the Yugoslavia and Rwanda tribunals. These tribunals exercise jurisdiction over crimes that are clearly international crimes because they appear in and are defined by the statutes of the tribunals, which in turn were established by binding Security Council resolutions. Similarly, if the statute adopted by the Rome Conference in treaty form comes into effect, the international criminal court will be exercising jurisdiction over crimes defined under international law.

As to crimes that are not within the jurisdiction of established or proposed international criminal tribunals, and therefore are prosecuted, if at all, before national tribunals, international law and procedures may play a major role, regardless of whether the crimes themselves are properly classified as “international crimes.” In particular, many of the so-called international crimes are the subject of treaties and conventions, which, inter alia, define the offence and establish a legal framework for states parties to cooperate toward punishment of the perpetrators of these crimes. They may also create a system of universal jurisdiction over these crimes for states parties and, in the case of those conventions that have been ratified by a large number of states, they may have contributed to the establishment of a system of universal jurisdiction available to all states.[14]

Since the most important goal of these treaties and conventions is to ensure prosecution of the accused, many of the conventions strongly state an obligation either to extradite or to submit the accused for prosecution.[15] Under normal circumstances, it is solely up to the state where an accused is

apprehended to decide whether to extradite or prosecute him.[16] To ensure that the prosecution option is realizable, each state party is required to take such measures as may be necessary to establish its jurisdiction over the offence in cases where the alleged offender is present in its territory and it decides not to extradite him.[17] Usually, this will require the adoption of legislation.

By definition, then, an “international crime” is an act that is defined as criminal under international law. In most instances, this will be done through international agreements, but customary international law also plays a role. Normally, an act will initially be defined as a crime by an international agreement and then, after the agreement has been ratified by a large number of states and generally accepted even by those states who do not become parties, the act may be regarded as a crime under customary international law.[18] If an act is defined as an international crime under customary

international law, this creates an international legal obligation to refrain from the commission of the act. The classic example of this process is the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land,[19] which the International Military Tribunal at Nuremberg explicitly recognized as having become customary international law, at least by 1939.[20] There is no definitive list of what acts qualify as international crimes. A recent survey of conventions that criminalize certain acts, however, produced the following table,[21] which lists the acts under the interests the conventions are designed to protect:

Some of these crimes are generally regarded as covered by jus cogens norms, i.e., peremptory norms of international law that preempt any other inconsistent law.[22] Examples commonly cited include aggression, genocide, crimes against humanity, war crimes, piracy, slavery, and torture.[23] In such cases, an agreement by a state or an individual to commit the crime would be unlawful and void ab initio as a matter of law.[24]

Also, some of these crimes are distinguished from the other crimes by referring to them as “core crimes.”[25] For example, the statute of the permanent international criminal court only covers genocide, crimes against humanity, war crimes, and aggression.

Not all of the conventions that cover these crimes contain an obligation or authorization to prosecute or a duty to prosecute or extradite.[26] In sharp contrast, with respect to war crimes, the Geneva Conventions of 1949,[27] in particular, designate certain “grave breaches” as universal and extraditable offenses within the criminal jurisdiction of each state party. Each of the four 1949 Geneva Conventions obligates states parties: (1) to enact any legislation necessary to impose effective criminal sanctions on persons committing, or ordering to be committed, any grave breaches of the conventions; (2) to

search for alleged offenders and to submit them for prosecution before their own courts, whatever their nationality, or, alternatively, and in accordance with their own legislation, to extradite them to another state party, provided that the requesting party has made out a prima facie case; and (3) to ensure to accused persons a fair trial with judicial safeguards specified in the Third Convention on prisoners of war.[28]

As previously noted, many of the conventions on international crimes have as their primary focus the prosecution and punishment of individuals who perpetrate the crimes. Moreover, it has long been established that the official position of the perpetrator, as head of state or as a government official, does not relieve him or her of criminal responsibility.[29] It has long been equally well-established that states that sponsor international crimes may be held civilly liable, at least at the international level, for such sponsorship.[30] Much more controversial, however, have been recent developments in the International Law Commission’s work on state responsibility. Specifically, in 1996, the Commission adopted a complete set of draft arti-

cles on state responsibility at first reading.[31] Among these draft articles is Article 19, which draws a distinction between international “crimes” and international “delicts.” Under the Commission’s approach, states would be subject to additional consequences for the commission of state crimes.[32] The United States Government, among others, has sharply criticized this concept,[33] and it is unclear at this writing whether the final articles on state responsibility will retain it. Regardless of the ultimate fate of Article 19 and related articles, the Commission’s approach raises the complex issue of states that sponsor international crimes.

II. OBSTACLES TO THE PROSECUTION OF INTERNATIONAL CRIMES

As noted above,[34] there may be as many as twenty-four different international crimes. For purposes of our brief consideration of obstacles to the prosecution of international crimes, however, it may be useful to distinguish between the so-called “core crimes”—aggression, genocide, war crimes, and crimes against humanity—and other international crimes. Also, as to the “other” international crimes, it would seem prudent to limit our consideration to a few crimes that have been at the center of international efforts to suppress them, namely, acts of terrorism and torture. As we shall see, rather different obstacles face efforts to prosecute the core crimes as compared to the others, although there are, to be sure, areas of considerable overlap.

A. The Core Crimes

1. Aggression

Among the four crimes covered by the Rome Statute for an International Criminal Court, the crime of aggression has been the most troublesome and controversial. The precedent for the crime of aggression was the crime against peace charge filed against the defendants at the Nuremberg Trials.[35] Article 6(a) of the London Charter that established the Nuremberg Tribunal defined crimes against peace as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” The term, “aggression,” however, is nowhere defined in the London Charter; nor was the term defined in the

Tribunal’s opinion. Rather, the aggressive nature of the Nazi attacks was assumed, and the primary focus of the Tribunal was on the defendants’ allegation that the charge constituted ex post facto law.

The United Nations Charter uses the term “aggression” only in Chapter VII, where it authorizes the Security Council to determine the existence of an act of aggression and to make recommendations or decisions on measures to be taken by member states in order to maintain international peace and security.[36] Nowhere in the U.N. Charter is the concept of aggression defined.

This absence is deliberate, for many states, including the United States, opposed defining aggression. U.S. President Harry Truman described such an effort as “a trap for the innocent and an invitation to the guilty” and noted that under the Charter system as adopted, “the appropriate U.N. organ, in the first instance the Security Council, would determine on the basis of the facts of a particular case whether aggression has taken place.”[37]

Despite this and later U.S. reservations, in 1974 the U.N. General Assembly adopted by consensus a resolution defining aggression.[38] The Assembly’s definition, however, was not adopted for the purpose of imposing criminal liability, and was intended only as a political guide for the Security Council.[39]

As a consequence, the definition of aggression was not included in any multilateral convention, nor was it generally included as a crime in national criminal legislation. Most significantly, it does not appear in the statute of either the Yugoslavia or Rwanda Tribunals, and there have been no prosecutions for crimes against peace or aggression since the Nuremberg and Tokyo Trials and the trials of German and Japanese defendants that followed in their wake.[40]

One reason for this inactivity may be that prosecution for the crime of aggression would arguably raise serious due process questions. Under U.S. constitutional law a criminal statute is void when it is so vague and imprecise that “men of common intelligence must necessarily guess at its meaning and

differ as to its application.”[41] Past efforts to define aggression have been replete with vagueness and ambiguity.[42]

It is thus perhaps surprising that aggression would appear in the Rome Statute for the International Criminal Court.[43] The court’s jurisdiction would be deferred, however, until such time as the states parties have defined the crime and set out the conditions under which the Court shall exercise jurisdiction with respect to this crime.[44] It remains to be seen whether the states parties will be able to accomplish this task.

2. Genocide

As noted by Steven Ratner and Jason Abrams, “[s]cholars and practitioners of international law often regard genocide as the most heinous international crime.”[45] A primary reason for this view is the extraordinary barbarism that characterized the Holocaust, history’s most traumatic instance of genocide. The Charter of the Nuremberg Tribunal did not expressly use the term “genocide,”[46] but the definition of the crimes against peace charge covered many acts today regarded as constituting genocide,[47] the indictment of the defendants expressly charged them with genocide,[48] and the prosecution used the term during the proceedings.[49] Moreover, unlike the other crimes against humanity, the crime of genocide has been defined in a widely ratified multilateral convention—the Genocide Convention of 1948[50]—and the prohibition against genocide is generally regarded as a jus cogens norm. However, the Genocide Convention’s definition of genocide remains controversial and, most importantly, the Convention has been a singular failure, both as a

deterrent to acts of genocide[51] and as a legal instrument facilitating prosecution and punishment of the crime.[52]

This failure is not surprising, since the Genocide Convention is a seriously flawed instrument. Besides its limited scope, which does not cover so-called political genocide,[53] the Convention’s most serious failing was identified by George Schwarzenberger. Noting that genocide by its very nature is most often committed by government officials as a matter of national policy and that the Convention calls for prosecution in the court of the state in which the crime was committed, Schwarzenberger states, after reviewing arguably genocidal actions by a number of governments:

Hardly any of these alleged crimes have been committed spontaneously by irresponsible individuals. Yet the whole Convention is based on the assumption of virtuous governments and criminal individuals, a reversion of the truth in proportion to the degree of totalitarianism and nationalism practiced in any country. In any event, even if this assumption were correct, the criminal law of every civilized State provides sufficiently against any individual act of the kind which are enumerated in the Convention. As it was once put by Sir Hartley Shawcross, murder remains murder whether committed against one or a million. In either case a criminal can be hanged only once.[54]

The Convention also provides that states parties may “call upon the competent organs of the United Nations to take such action . . . as they consider appropriate for the prevention and suppression of acts of genocide”[55] and that disputes between states parties regarding the “interpretation, application, or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide . . . shall be submitted to the Inter-

national Court of Justice at the request of any of the parties to the dispute.”[56] These provisions have been invoked only once.[57] Moreover, some states, including the United States, have made reservations to the jurisdiction of the ICJ that preclude their calling another state party to account for the commission of genocidal acts.[58]

Notably, both the Yugoslavia Tribunal and the Rwanda Tribunal have jurisdiction over the crime of genocide.[59] On July 6, 1998, the Yugoslavia Tribunal began the trial of a Bosnian Serb charged with the crime of genocide, the first time an international trial for genocide has taken place in Europe.[60] This trial came to an abrupt halt when, on August 1, 1998, the defendant died in his cell of an apparent heart attack.[61] For its part the Rwanda Tribunal is trying dozens of defendants on charges of genocide committed during the ethnic massacres in Rwanda in 1994.[62] According to newspaper reports, a former prime minister of Rwanda recently “pleaded guilty to charges of genocide after long negotiations with the prosecutors” [63] for the Rwanda Tribunal, and the tribunal has found a former mayor in Rwanda guilty of genocide—the first time an international criminal tribunal has convicted someone of that crime.[64] Reportedly, Rwanda’s national

courts have convicted some members of the Hutu ethnic group of genocide under local law.[65]

The definition of genocide in the statutes of the two tribunals, however, tracks the definition in the Genocide Convention. Accordingly, as pointed out by Ratner and Abrams,[66] ambiguities in this definition, as well as its exclusion of protection for political, economic, and social groups, may make successful prosecution for genocide before the tribunals problematic.

3. War Crimes

The law of war crimes has a long vintage and was arguably already well established by the time of the Nuremberg Trials.[67] As noted earlier in this Article,[68] the Geneva Conventions of 1949, as well as Additional Protocol I, designate certain “grave breaches”[69] as universal and extraditable offenses within the criminal jurisdiction of each state party and require states parties to search for alleged offenders, submit them for prosecution before their own courts, or alternatively, to extradite them to another state party. For its part, in 1953 the United Nations General Assembly adopted a resolution[70] that, inter alia, reaffirms that war crimes and crimes against humanity are subject to universal jurisdiction, calls upon states to assist each other in “detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them,” and provides that

persons accused of war crimes and crimes against humanity should be tried in the countries where they committed their crimes, that states shall cooperate on questions of extraditing such persons and that states shall not grant asylum to any person who is suspected of having committed a “crime against peace, a war crime or a crime against humanity.”[71]

Although most authorities agree that war crimes may be punished by any state that obtains custody of alleged offenders under the principle of universality, war crime cases tried by national tribunals of states other than those of the nationality of the victim, the accused or the locale of the crime have been quite rare. The obligation to exercise jurisdiction over grave breaches of the Geneva Conventions of 1949 extends to neutral states, yet they have been reluctant to fulfill their obligation.[72] Their reluctance to become involved in the trial of war criminals hampers efforts to provide an impartial tribunal for the trial of these crimes.[73]

Beyond the text of the various instruments, the key impediment to successful invocation of the humanitarian law of international armed conflict is likely to be the attitude of the combatants toward prosecutions. States have proved reluctant to prosecute their own soldiers for war crimes unless they are especially heinous and publicized, thereby justifying impunity, or a small administrative punishment, on the exigencies of warfare. Moreover, they have also hesitated to prosecute the opponent’s soldiers if the opponent is still holding some of their prisoners, for fear of retaliation. These problems do not wholly dissipate with the creation of international fora for prosecutions, for the same inertia could render states reluctant to hand over suspects to such a tribunal.[74]

The lack of political will or “inertia” to bring the perpetrators of war crimes to justice has been especially evident in recent years. In such major conflicts as the Iran-Iraq War (1981–88) and the Soviet intervention in Afghanistan (1981–89), the unannounced policy of the combatants was that of unrestricted warfare, atrocities were routinely perpetrated by both sides, and no war crimes trials were ever held. Similarly, although numerous war crimes were committed by Iraq during the Gulf War, and proposals were made to establish an international criminal tribunal to try Saddam Hussain

and other Iraqi leaders,[75] no war trials have been held. Only as the gruesome atrocities committed in Bosnia were widely publicized, was the pattern of inaction broken with the establishment of the Yugoslavia Tribunal.[76]

Moreover, most armed conflicts since World War II have not been between states but have instead involved non-international conflicts.[77] In this milieu the prosecution of war crimes has been especially difficult.[78]

An overarching problem in prosecuting war crimes perpetrated in non-international conflicts is that states have resisted extending the law of armed conflict to internal struggles for power because they prefer to deal with those who rebel against their authority solely under the national law and procedure.[79] Common Article 3 of the Geneva Conventions of 1949 requires parties to any “armed conflict not of an international character” to apply, “as a minimum,” certain standards[80] to “persons taking no active part in the hostilities.” But it is unclear what level of conflict is necessary to trigger these protections.[81] Most important, violations of Common Article 3 do not constitute grave breaches for which criminal responsibility necessarily lies.[82]

Similarly, Protocol II to the Geneva Conventions of 1949,[83] if anything, reflects a greater unwillingness on the part of states to extend the law of armed conflicts to non-international conflicts. This is because Protocol II’s threshold of applicability is “significantly higher” than that of Common

Article 3.[84] As pointed out by Ratner and Abrams, this is demonstrated “particularly in the requirements of (a) two sets of armed forces, (b) responsible command, and (c) sufficient control over territory to carry out sustained operations, none of which is necessarily required for application of Common Article 3.”[85]

4. Crimes against Humanity

Like aggression, but unlike genocide and war crimes, crimes against humanity have not been the subject of development through widely ratified multilateral treaties. Hence, development of the law on crimes against humanity has been primarily through customary international law.[86] This evolution has resulted in a situation where the precise scope and content of crimes against humanity are uncertain.[87]

As we have seen,[88] the Charter of the Nuremberg Tribunal contained the charge of crimes against humanity, and this has been described as “the birth of the modern notion of crimes against humanity.”[89] Since the Nuremberg Trial, however, there has been no definition of crimes against humanity enjoying universal acceptance.[90] Arguably, the most authoritative definition is that found in the Rome Statute for the International Criminal Court, since it is the product of deliberations stretching over several years and involving over 160 countries and numerous nongovernmental organizations and private experts.[91] Article 7 of the Rome Statute provides:

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) “Forced pregnancy” means the unlawful confinement, or a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.
(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or

groups and committed with the intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the arrest, detention or abduction or persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.

Article 7 would, at least for the purposes of the Rome Statute, resolve a variety of issues that have arisen regarding the definition of crimes against humanity.[92] A primary issue has been whether, as in the case of the charge at Nuremberg, there must be a connection between the crime and armed conflict. In keeping with the modern trend,[93] Article 7 would not require any such connection.

Another key issue regarding crimes against humanity is how to distinguish the crime from, say, the crime of murder as found in national legal systems around the world. To this end, it has long been agreed that acts must involve more than isolated instances for them to qualify as crimes against humanity.[94] Rather, such acts must involve either atrocities on a large scale or a policy of acting in a preconceived and systematic way.[95] In requiring that the acts specified be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” paragraph 1 of Article 7 reflects the generally agreed upon limitations.[96]

Still another issue has been whether the motive behind the crime should play any role in its definition, i.e., whether the perpetrator must have acted based on some character trait of the victim.[97] On this issue the authorities have been split. Some support the proposition that certain acts, such as murder, torture or deportation, are so atrocious that motive is irrelevant.[98] Others argue that all crimes against humanity require the presence of a motive that identifies the victim with a particular racial, religious, political,

social, or cultural attribute.[99] The Statute for the Yugoslavia Tribunal makes grounds for commission of the acts relevant only in the case of persecutions, and not for the other acts listed under the definition of crimes against humanity.[100] This is also the approach taken under paragraph 1(h) of Article 7 of the Rome Statute for the International Criminal Court.

Finally, there is the issue whether governmental involvement is necessary to transform a simple crime into a crime against humanity.[101] The majority view, at least until recently, has been that crimes against humanity require state action.[102] This is not the approach, however, favored by the Yugoslavia or Rwanda Tribunal Statutes.[103] The reason for this deviation from the majority view is that the Security Council recognized that many of the crimes in Yugoslavia and Rwanda had been committed by persons not associated with a recognized state.[104] Similarly, the Rome Statute for the International Criminal Court does not require the presence of state action.[105]

5. Some General Observations Regarding the Prosecution of Core Crimes

As noted above, for a variety of reasons, states have been unwilling or unable to prosecute perpetrators of the core crimes, at least since the Nuremberg and Tokyo Trials. It remains to be seen whether the Yugoslavia and Rwanda Tribunals prove to be successful instruments for such prosecutions. As for the Rome Statute for the International Criminal Court, it is difficult not to be pessimistic. Assuming that the statute is widely ratified—a questionable proposition—there are provisions in the statute that may constitute insurmountable barriers to the court’s effectiveness.[106]

For example, in order to gain France’s approval of the statute,[107] there is a provision that allows states parties to “opt out” of the court’s jurisdiction over war crimes for a seven year period after they become a party to the statute.[108] The most disabling aspect of the Rome Statute, however, is the consent regime that limits the court’s jurisdiction.[109] As a precondition to the court’s exercise of jurisdiction over any of the four core crimes,[110] either the state where the alleged crime took place, or the state of nationality of the alleged offender, must give its consent,[111] either by becoming a party to the court’s statute or on an ad hoc basis.[112] The practical effect of this limitation on the court’s jurisdiction is that only someone who commits genocide, crimes against humanity, or war crimes on foreign soil might possibly come within the jurisdiction of the court. In most cases, such people commit these crimes within their own territory and against their own countrymen. Also, more often than not these crimes are state sponsored and therefore the necessary state consent would not be forthcoming.[113] These perpetrators would even be able to travel freely without fear of being subject to an arrest warrant from the court.[114]

Despite these limitations on the ability of the permanent international criminal court to function, for some observers in the United States, these are not enough. To them the United States must not only refrain from ratifying the court’s statute, it must also aggressively oppose the court’s establishment and bring substantial pressure to bear against other countries to ensure that they do not become parties to the court’s statute.[115]

For both national and international tribunals, in cases involving the core crimes, there are often substantial obstacles to obtaining custody of the alleged offender and evidence sufficient to lead to a conviction.[116] Extradition is the most formal of the processes by which a tribunal obtains jurisdiction over offenders located outside its jurisdiction.[117] It is also the process most protective of the rights of the alleged offender.[118] At the same time it is a process that may not be available[119] or that may be ineffective.[120] As a consequence more informal methods of rendition, such as deportation or exclusion, may be utilized.[121] If these methods are unavailable, illegal (under international law) methods, such as kidnapping, may be employed.[122]

For national tribunals the mechanisms for obtaining evidence abroad for use in criminal proceedings are, if anything, weaker and less satisfactory than those for obtaining custody of an accused. These include letters rogatory (formal requests to a foreign court) and mutual legal assistance treaties, which obligate parties to take certain steps to cooperate with and assist each other.[123]

In contrast both the Yugoslavia and Rwanda Tribunals have extraordinary powers, conferred by the Security Council, to obtain custody of defendants and evidence.[124] Nonetheless, both tribunals have encountered significant resistance to their efforts toward this end.[125] Moreover, investigators for the tribunals have discovered that much of the evidence they have uncovered is insufficient for the purposes of criminal prosecution.[126]

B. Acts of Terrorism and Torture

The past year has seen terrorist bombings of U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, that have resulted in large numbers of persons killed or seriously wounded.[127] Interestingly, until recently, terrorist bombings—unlike other manifestations of terrorism, such as aircraft hijacking or sabotage, attacks on internationally protected persons, including diplomats, hostage taking, and the theft of nuclear material—were not covered by any multilateral treaty that required states parties to criminalize such activity under their domestic law.[128] On December 15, 1997, however, the United Nations General Assembly adopted by consensus an International Convention for the Suppression of Terrorist Bombings, which will enter into force thirty days after the twenty-second state party has ratified it.[129]

In contrast, as already noted, the Rome Statute of the International Criminal Court does not include any manifestations of terrorism within the court’s jurisdiction. The 1994 ILC draft statute would have provided for such coverage[130] but these provisions, as well as others that would have covered other international crimes including torture, were dropped and do not appear in the Rome Statute.[131]

For its part, depending on the circumstances in which it is committed, torture may qualify as a war crime or a crime against humanity. Torture may also qualify as an independent crime outside of the context of armed conflict

or crimes against humanity.[132] It is also generally agreed that prohibitions against torture constitute jus cogens norms.[133]

Despite the presence of these relatively elaborate legal frameworks, efforts to prosecute and punish acts of terrorism and torture have faced considerable obstacles.

1. Acts of Terrorism

This Section of the Article addresses the issue of prosecuting and punishing acts of terrorism rather than “terrorism” as such. For a variety of reasons neither the United Nations nor its specialized agencies has been able to agree on a definition of international terrorism.[134] Partly as a result the United Nations has also been unable to agree on a single convention on the legal control of terrorism. Rather, the United Nations has adopted a piecemeal approach to the problem through the adoption of separate conventions aimed at suppressing aircraft hijacking,[135] unlawful acts against the safety of civil aviation,[136] or of airports serving international civil aviation,[137] attacks against internationally protected persons, including diplomats,[138] the taking of hostages,[139] unlawful acts against the safety of maritime navigation,[140] the theft of nuclear material,[141] the use of plastic explosives,[142] and, most recently, terrorist bombing.[143]

Although these treaty provisions are often loosely described as “antiterrorist,” the acts themselves that they cover are criminalized regardless of whether, in a particular case, they could be described as “terrorism.”[144] Whether the crimes

covered by the antiterrorist conventions may be classified as “international crimes” is debatable.[145] At the least, the antiterrorist conventions establish a legal framework for states parties to cooperate toward punishment of the perpetrators of these crimes. They also create a system of universal jurisdiction over these crimes for states parties and, in the case of those conventions that have been ratified by a large number of states,[146] they may have contributed to the establishment of a system of universal jurisdiction available to all states.

There is at least anecdotal evidence to support the claim of the U.S. Government, made with respect to the year 1997, that “[c]ontinuing a positive trend of recent years, more terrorists are being apprehended, put on trial, and given severe prison terms for their crimes.”[147] Moreover, in considerable part, this positive trend is the result of an “antiterrorist campaign promoted by the U.S. government.”[148] This campaign has included, among other things, intensive exchanges of information among police and intelligence agencies, pressure on foreign governments to adopt tougher antiterrorist policies, the conclusion of new, and the revision of old, extradition treaties and mutual legal assistance treaties (MLATs), greater use of such “irregular” methods of rendition as deportation and exclusion, the conclusion of antiterrorist conventions, the passage of legislation with extraterritorial reach, and the tightening of security for U.S. embassies abroad and government buildings at home.[149]

A major difficulty in evaluating whether efforts to prosecute and punish international terrorists have been successful is that, “with the exception of data on the extradition and prosecution of aircraft hijackers and saboteurs, compiled by the International Civil Aviation Organization and the U.S. Federal Aviation Administration, reliable data on the extradition, prosecution and punishment of those who commit international crimes are not available.”[150] In any event, current trends in terrorism may make the prosecution of these crimes more difficult. Specifically, the number of aircraft hijackings and hostage takings, previously favored manifestations of terrorism that fairly often resulted in apprehension of the perpetrator, have declined, but bombings that result in large number of casualties and the escape

of the perpetrators are on the increase.[151] Also, as noted in the New York Times,[152] there have been major attacks against Americans in the 1980s and the 1990s where the terrorists were either not identified or, if identified, were not prosecuted or punished, sometimes because of the failure of the governments of other countries to cooperate.

2. Torture

There is a wide range of international legal instruments that implicitly or explicitly prohibit torture.[153] Until recently, these instruments simply imposed obligations on states to refrain from and to take preventive action against the practice.[154] In 1975, however, the United Nations General Assembly adopted the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[155] This landmark declaration takes the vitally important steps of defining “torture,” calling upon states to ensure that all acts so defined are criminal offenses under their criminal law, and providing for redress and compensation for the victims. This declaration was followed by the General Assembly’s adoption in 1984 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[156] As of September 1, 1998, 106 states were parties to the Torture Convention.[157]

The Torture Convention’s definition of torture is generally regarded as the most authoritative.[158] Under the Convention torture is defined as:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,

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punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[159]

The Convention does not permit any “exceptional circumstances whatever” to be invoked as a justification of torture.[160] The scope of its definition of torture, however, is a matter of some ambiguity. It is clear that the list of purposes for which the severe pain is inflicted on the victim is illustrative only[161] and that the perpetrator of the torture need not be a public official, although a public authority must have ordered or acquiesced in the action.[162] Precisely what situations would be covered by the Convention’s required nexus to official conduct is less clear. It would appear that the Convention does not address torture committed by a purely private group.[163]

The Convention contains a number of provisions designed to enhance the prospects for prosecution of those who engage in torture. Each state party is required to “ensure that all acts of torture are offenses under its criminal law”[164] and that it is able to exercise jurisdiction over an alleged offender when it decides not to extradite him.[165] The choice of whether to extradite or prosecute is up to the state party where an alleged offender is found.[166] Each state party is also required to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”[167] As we shall see later in this Article,[168] there is some evidence that the drafters of the Convention intended that this provision would apply only to torture that took place in the territory of the state party awarding compensation and would have no extraterritorial application.

Torture is a practice that has been widely employed throughout the ages and, according to reports, continues to be employed extensively.[169] Nonetheless, there appears to be a general consensus today that it constitutes both

a tort[170] and a crime[171] under international law. Yet there is little evidence that the crime is prosecuted in national courts and less evidence that the Torture Convention has enhanced the prospects for such prosecution.[172] Moreover, as noted above,[173] the Rome Statute of the International Criminal Court does not include torture in the list of crimes over which the court would have jurisdiction. Nor is torture listed as a separate crime in the Statutes of the Yugoslavia and Rwanda Tribunals.

The lack of prosecution for torture may be due in large part to the required nexus between the crime and official conduct. No state proclaims a right to torture. On the contrary, torture is a crime under virtually all national legal systems. When torture does occur the standard response of the government of the country where it takes place is to deny its existence. Holding a trial of an alleged offender would probably reveal government involvement. The problem is similar in this respect to cases of genocide.[174]

III. CIVIL LIABILITY FOR INTERNATIONAL CRIMES:
CURRENT LAW AND PRACTICE

When considering the possibility of civil liability for the commission of international crimes, it is important to make two distinctions. First, imposing civil liability against individuals differs greatly from imposing it against governments. As we shall see, in the U.S. context, there is a history, albeit limited, of suits that have been successful in seeking to hold individuals civilly liable for the commission of international crimes. In contrast, the history of successful suits against governments for the commission of international crimes abroad begins with the year 1996. Second, it is important to distinguish between obtaining a judgment of liability for international crimes and seeking to collect on such a judgment. In suits against individuals and governments, plaintiffs have encountered extreme difficulties in collecting on their judgments.

There is no special difficulty in bringing a civil suit against individuals who commit an international crime in the United States, although collect-

ing on the judgment may be difficult if the defendant has no assets in the United States. Civil suits against governments who commit international crimes in the United States also should encounter no special difficulty, except at the enforcement of judgment stage. Even if the government has assets in the United States, the obstacles to executing a judgment against them may be insurmountable.

Civil suits for the commission of international crimes outside of the United States, on the other hand, have given rise to great controversy and are the primary focus of this Article. Although it has not been consistent in this respect, the U.S. Government has usually been unenthusiastic about civil suits against individuals who commit international crimes abroad. It has been more adamant in its opposition to suits against governments who sponsor the commission of international crimes abroad filed in U.S. courts.

In the following section we examine arguments for and against the use of civil suits as an alternative to criminal prosecution of international crimes. We begin with a consideration of civil suits against individuals and then turn to civil suits against governments.

A. Civil Suits against Individuals

Although the legal systems of other countries may afford opportunities to bring civil suits against those who commit international crimes abroad, these have apparently been few and largely unsuccessful.[175] In any event the United States has by far the most extensive experience with such suits, which have been based primarily on an ambiguous statute called the Alien Tort Claims Act[176] and the Torture Victim Protection Act of 1991.[177]

The Alien Tort Claims Act provides that “[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.” There is no requirement under the statute that plaintiffs prove that the act in question constitutes a crime as well as a tort under the “law of nations” but many of the acts forming the basis for suits under the statute have constituted international crimes as well as international torts.[178] In order for the federal courts to have subject matter jurisdiction, plaintiffs must demonstrate that

they are aliens, that the defendant is responsible for a tort, and that the tort violates the law of nations or a treaty to which the United States is a party.[179]

Until 1980 the Alien Tort Claims Act was seldom invoked and was an “obscure basis for U.S. federal court jurisdiction.”[180] In that year, however, the situation changed dramatically when the Second Circuit Court of Appeals handed down its decision in Filartiga v. Pena-Irala.[181] There, in the context of a suit brought by the family of a Paraguayan man who had been tortured to death against the alleged perpetrator, also a Paraguayan, while he was in the United States, the court found that the Alien Tort Claims Act afforded it subject matter jurisdiction and, as we have previously seen,[182] went on to hold that torture was a violation of the law of nations within the meaning of the statute.[183]

Shortly after Judge Irving Kaufman’s decision, his interpretation of the Alien Tort Claims Act was challenged by Judge Robert Bork in a concurring opinion of the Court of Appeals for the District of Columbia Circuit in Tel Oren v. Libyan Arab Republic.[184] In Filartiga, the court had interpreted the phrase “in violation of the law of nations” as referring to “international law not as it was in 1789 [the date of the statute], but as it has evolved and exists among the nations of the world today.”[185] To the contrary, Judge Bork interpreted this phrase as referring only to the law of nations as it stood in 1789.[186] Additionally, Judge Kaufman interpreted the Act as providing a federal cause of action for violations of international law falling under it.[187] Per contra, Judge Bork would require that the treaty provision or customary international law norm in question explicitly grant individuals a “cause of action.”[188]

Significantly, the U.S. Departments of Justice and State filed an Amicus Curiae memorandum in Filartiga supporting the position adopted by Judge Kaufman. After the Tel Oren decision, however, the Department of Justice adopted Judge Bork’s “cause of action” approach in a Memorandum for the United States as Amicus Curiae in a suit pending before the Ninth Circuit.[189] Although the Ninth Circuit[190] and other circuits[191] have rejected this view,

it has never been considered by the U.S. Supreme Court. Nonetheless, at least for acts of torture and extrajudicial killing, Judge Bork’s approach was rejected by the passage of the Torture Victim Protection Act in 1992.

The Torture Victim Protection Act of 1991[192] authorizes civil suits against persons who, under the color of law of any foreign nation, torture or summarily execute another person. As pointed out by Ratner and Abrams, the Torture Victim Protection Act has four basic requirements:

(1) the defendant must have committed torture or an extrajudicial killing; (2) the defendant must have acted under actual or apparent authority, or color of law, of a foreign nation; (3) the plaintiff must be a victim, their legal representative, or a person who may be a claimant in a wrongful death action; and (4) the plaintiff must have exhausted remedies in the country where the conduct giving rise to the claim occurred.[193]

Unlike the Alien Tort Claims Act, the Torture Victim Protection Act does not limit its coverage to alien plaintiffs. On the other hand, the Act has been interpreted as “not intended to trump diplomatic and head-of-state immunities.”[194]

Although bringing suits under the Alien Tort Claims Act and the Torture Victim Protection Act is “fraught with obstacles,” a number of earlier and recent cases have awarded judgments in favor of the plaintiffs for substantial compensatory and punitive damages.[195] Arguably, however, these judgments have been largely pyrrhic victories, because usually the plaintiffs in these actions have been unable to collect on their judgments.

To be sure, even if there is no recovery of a judgment, there may be other reasons for pursuing such litigation. For example, as stated by Ratner and Abrams:

While civil suits do not lead to the same degree of accountability as a criminal process, they do offer a way of seeking justice and represent one form of authoritative adjudication of legal issues relating to human rights violations. Even if defendants flee the jurisdiction, such suits still bring attention to past atrocities, provide victims with a forum to present their claims, and deprive the defendants of foreign refuge in the countries where the cases are

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brought. Moreover, obtaining a judgment against the defendant affords the plaintiff an opportunity to pursue any of the defendant’s assets uncovered in jurisdictions willing to enforce the judgment.[196]

It is unclear to what extent foreign jurisdictions would be willing to enforce judgments in these cases. Even in ordinary tort and commercial cases it may be difficult to enforce U.S. court decisions abroad.[197] These difficulties could be greatly compounded in Alien Tort Claims Act and Torture Victim Protection Act cases.[198] Perhaps in part because of these difficulties, there have been very few attempts to enforce such judgments abroad.[199]

B. Civil Suits against Governments

As we have seen, in many cases—especially those involving the three core crimes of genocide, war crimes and crimes against humanity, torture, and, to a lesser extent, acts of terrorism—the crime in question is committed by government agents or at least is sponsored by a government.[200] Nevertheless, only rarely have governments been held liable for the commission of international crimes. Recently, however, the situation has changed dramatically, especially in U.S. courts.

Before turning to a consideration of the evolving situation in the United States, it is useful to note the prospects for holding states civilly liable through the processes of international law and international institutions. The norms prohibiting the crimes in question clearly are peremptory or jus cogens rules and give rise to rights and obligations erga omnes, that is, all states have an interest in the protection of the rights involved.[201] As to such erga omnes norms all States can take peaceful steps to induce compliance. They can protest, make claims through diplomatic channels, or bring suit if they can satisfy the jurisdictional requirements of the International Court of Justice or of some relevant system of arbitration. In practice, however, states seldom take such steps. For example, although the Genocide Convention has been in force since 1951, no steps to induce compliance with it were taken until March 20, 1993 when Bosnia-Herzegovina brought its action against

Yugoslavia before the International Court of Justice.[202] Until the eruptions in Yugoslavia and Rwanda the widespread commission of war crimes and crimes against humanity in the post World War II period largely went unprotested. Although many of the antiterrorist conventions contain compromissory clauses that would permit allegations of state sponsorship of terrorism to be brought before the International Court of Justice, states have been reluctant to invoke these clauses.[203] Ironically, it was Libya rather than the United States and the United Kingdom who invoked the compromissory clause in the Montreal Convention,[204] although the evidence is strong that the Libyan Government was behind the bombing of Pan Am Flight 103. The Torture Convention has been in force since 1987, but nongovernmental organizations like Amnesty International rather than states continue to be the primary force protesting violations of the convention. Also, although the Torture Convention has a compromissory clause that would permit reference of disputes regarding alleged violations of the convention to the International Court of Justice, many state-parties, including the United States, have made disabling reservations to that clause.[205]

In short, it appears highly unlikely that states will play a significant role in pursuing civil liability suits against other states for alleged violations of the prohibitions against international crimes. In fact, we shall see that governments have resisted the efforts of private individuals to pursue such remedies.

1. U.S. Civil Suits against Foreign Governments prior to the 1996 Antiterrorism and Effective Death Penalty Act

The major, although by no means the only, obstacle facing those who would bring civil suits against countries that commit or sponsor the commission of international crimes is, of course, the doctrine of foreign sovereign immunity.[206] Since 1976 issues of foreign sovereign immunity in the United States have been governed by the Foreign Sovereign Immunities Act (FSIA).[207] The terms of the FSIA as it was adopted in 1976 reflected a re-

strictive theory of sovereign immunity. This restrictive theory denied immunity in cases arising out of commercial transactions on the ground that absolute immunity was unfair because it deprived private parties of their judicial remedies when dealing with states, and gave the states an unfair comparative advantage over private commercial enterprises. Aside from the commercial activity exception, however, the exceptions to sovereign immunity under the FSIA were few. Indeed, prior to 1996, absent an explicit or implicit waiver of immunity, the liability of a foreign sovereign for noncommercial, public acts was largely limited to noncommercial torts that were committed and had their injurious consequences in the United States.[208] With rare exceptions, foreign sovereigns enjoyed complete immunity under the FSIA from possible civil liability for the commission of international crimes abroad.[209]

Moreover, in Argentine Republic v. Amerada Hess Shipping Company,[210] the U.S. Supreme Court ruled unanimously that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of the United States. In so ruling the Court reversed a decision of the Court of Appeals for the Second Circuit that the FSIA was not intended to eliminate the preexisting remedies of the Alien Tort Claims Act.[211]

After the ruling in Amerada Hess, plaintiffs seeking to sue foreign sovereigns in U.S. courts for the commission of international crimes abroad had to demonstrate that the circumstances of their cases fell within one of the exceptions to the FSIA. To this end, they employed a number of arguments. For example, they argued that defendants who participated in the commission of international crimes had violated jus cogens norms of international law and thereby waived their immunity under the FSIA.[212] Several U.S. Circuit Courts of Appeal rejected this argument.[213]

In an action brought by the personal representatives of the victims of the bombing of Pan Am Flight 103 over Lockerbie, Scotland in 1988, the plaintiffs argued that Pan Am Flight 103 should have been considered the “terri-

tory” of the United States for purposes of the FSIA. The court rejected this argument on the ground that merely because a location is subject to an assertion of U.S. authority it does not necessarily follow that it is the “territory” of the United States for purposes of the FSIA. Accordingly, the court held, the bombing did not fall within the noncommercial tort exception to immunity under the FSIA.[214]

Alternatively, the plaintiffs in the Pan Am Flight 103 case made an argument based on the language in the FSIA that a foreign state’s immunity is “[s]ubject to existing international agreements to which the United States is a party at the time of enactment of [the FSIA].”[215] According to the plaintiffs, Security Council Resolution 748,[216] which commits Libya to pay compensation to the victims of Pan Am Flight 103, is a binding treaty obligation under Article 25 of the U.N. Charter and is therefore covered by the above quoted language of the FSIA. The court disagreed. In its view, this FSIA displacement of immunity is applicable only to international agreements in effect at the time the FSIA was adopted and cannot be interpreted to provide a “dynamic expansion whereby FSIA immunity can be removed by action of the U.N. taken after the FSIA was enacted.”[217]

Lastly, plaintiffs contended that international crimes committed abroad constituted “commercial acts” and therefore fell within the commercial activity exception of FSIA.[218] With one arguable exception[219] this argument also was unsuccessful.

2. The 1996 Antiterrorism and Effective Death Penalty Act and Subsequent Legislation

The inability of plaintiffs to recover against states for the commission of international crimes abroad led to sustained efforts to amend the Foreign Sovereign Immunities Act so as to permit such recovery. These efforts, however, were met with substantial resistance on the part of the executive branch.

This resistance was perhaps foreshadowed by executive branch opposition to passage of the Torture Victim Protection Act.[220] Although, as we have

seen,[221] that legislation does not provide for a cause of action against a foreign sovereign, it does require that the individual defendant act “under actual or apparent authority, or color of law, of a foreign nation.”[222] In the view of the U.S. Department of State,[223] “opening U.S. courts to suits against foreign governments or officials for extraterritorial acts of torture or extra-judicial killings raises three particular concerns: consistency with the international approach reflected in the UN [Torture] Convention, the problem of reciprocity and retaliation, and unwarranted judicial involvement in the conduct of foreign affairs.”[224]

With respect to the first concern, the Department of State’s representative contended in hearings on the Act that the provision of the U.N. Torture Convention requiring states parties to ensure that victims of torture have an enforceable right to fair and adequate compensation,[225] while not so limited by its terms, contemplates a private right of action only for acts of torture committed in the territory of that state party, not for acts of torture taking place in other countries. According to the Department’s representative, “the text as adopted included an express reference to that effect (which was evidently deleted by mistake).”[226] The unilateral enactment of extraterritorial jurisdiction contemplated by the Act could, according to the Department of State’s representative, result in the second concern: the “enactment of reciprocal legislation in countries which perceive themselves as targets . . . and . . . retaliation against U.S. citizens or governmental officials traveling abroad.”[227] Lastly, as to the third concern, the Department of State’s representative stated:

From a foreign policy perspective, we are particularly concerned over the prospect of nuisance or harassment suits brought by political opponents or for publicity purposes, where allegations may be made against foreign governments or officials who are not torturers but who will be required to defend against expensive and drawn-out legal proceedings. Even when the foreign government declines to defend and a default judgment results, such suits have the potential of creating significant problems for the Executive’s management of foreign policy. This is especially troubling because, in order to meet the statutory requirements, plaintiffs will have to allege as a preliminary matter that the conduct in question took place under the authority of the foreign government or under color of its law. In every case, therefore, the “lawfulness” of foreign government sanctions will be at issue. We believe that inquiry by a

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U.S. court into the legitimacy of foreign government sanctions is likely to be viewed as highly intrusive and offensive. In fact, it is also likely to be unnecessary, since even those states which engage in torture do not assert a legal right to do so.[228]

The U.S. Department of Justice presented testimony along similar lines.[229]

Not surprisingly, then, the U.S. Departments of State and Justice strongly opposed the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) that amended the Foreign Sovereign Immunities Act. In hearings on these provisions the Department of State’s representative suggested that “[f]undamental principles of sovereignty and international law are implicated in determining the extent to which foreign states should be responsible to private persons in the courts of other states.”[230] She reported that the Department of State was unaware of “any instance in which a state permits jurisdiction over such tortious conduct of a foreign state without territorial limitations.”[231] On the contrary, she said, other countries limited the lifting of sovereign immunity for such acts to situations where the act occurred in the forum state.[232] She then pronounced:

Consistency of the FSIA with established international practice is important. If we deviate from that practice and assert jurisdiction over foreign states for acts that are generally perceived by the international community as falling within the scope of immunity, this would tend to erode the credibility of the FSIA. We have made substantial efforts over the years to persuade foreign states to participate in our judicial system—to appear and defend in actions against them under the FSIA. That kind of broad participation serves the interests of all. If we expand our jurisdiction in ways that cause other states to question our statute, this could undermine the broad participation we seek. It could also diminish our ability to influence other countries to abandon the theory of absolute immunity and adopt the restrictive view of sovereign immunity, which the United States has followed for over forty years.[233]

The Department of State’s representative also contended that passage of this legislation could undermine the conduct of U.S. foreign policy and result in retaliation against the United States.[234] In particular, she suggested that

execution of judgments on foreign state property had “always been an area of particular sensitivity.”[235]

In contrast, other witnesses in the hearings strongly supported the proposed amendments.[236] Especially noteworthy was the testimony of Abraham D. Sofaer, a former Legal Adviser of the Department of State.[237] With respect to the Department of State’s objections to the extraterritorial reach of the proposed amendments, Sofaer noted that the prohibitions against torture and the other crimes covered are so fundamental and widely accepted among all states that the normal rules against extraterritorial assertions of jurisdiction are inapplicable. He also suggested that the safeguards contained in the proposed amendments on this extraterritorial assertion of jurisdiction should obviate any objections. The safeguards included limiting the right to sue to U.S. citizens to avoid opening U.S. courts to persons who suffer human rights violations anywhere in the world, and requiring the aggrieved person to exhaust any remedies that might be available in the country where the alleged violation occurred. Sofaer further suggested that the Department of State cannot be relied upon to espouse the claims of U.S. citizens who are the victims of international crimes committed abroad because the “Department’s decision with respect to espousal is likely to be influenced, not only by the merits of the case, but by the Department’s concern for offending a foreign state and creating a potential irritant in its dealings with that state.”[238] Most significantly, he contended:

The fear that adoption of this legislation would result in U.S. law enforcement agencies being hauled into foreign courts to account for their actions is unfounded . . . foreign states have been subject to suit in the United States for human rights abuses perpetrated by their intelligence and law enforcement agencies in this country. Yet, I am unaware of a single case in which an action alleging torture, assassination, or any similar abuse has been brought against the CIA, the DEA, or any other agency of the U.S. Government based on its activities abroad. Even less reason exists to fear that the U.S. law enforcement agencies will be hauled into foreign courts based on their maltreatment of foreign nationals on American soil. Few such cases occur in the U.S., and adequate and effective remedies exist for foreigners who might claim to have suffered such violations. While the danger of a retaliatory action is real, it seems insubstantial and well worth accepting as the price for en-

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suring a fair forum for the egregious acts involved, whether they occur on foreign or American soil.[239]

As enacted, the AEDPA amends the FSIA to permit a suit for money damages against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if the act or provision of support is engaged in by an official agent of the foreign state while acting within the scope of his or her duties.[240] The court shall decline to hear such a claim if: (1) the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979[241] or section 620A of the Foreign Assistance Act of 1961[242] at the time the act occurred, unless later so designated as a result of such acts; (2) the act occurred within the designated foreign state against which the claim was brought and the claimant did not afford the foreign state a reasonable opportunity to arbitrate the claim; or (3) the claimant or victim was not a U.S. national. At this writing, the states designated as sponsors of terrorism include Cuba, Iraq, Iran, Libya, North Korea, Sudan, and Syria.

The AEDPA also amended the FSIA to permit the attachment of, or execution upon a judgment against, the property of a foreign state used for a commercial activity in the United States. The action is taken when the judgment relates to a claim for which the foreign state is not immune as a state sponsor of terrorism, regardless of whether the property is or was involved with the act upon which the claim is based.[243] Normally, the property of a foreign state is immune from attachment or execution if the property was not involved with the act upon which the claim is based.[244]

Under separate legislation,[245] the FSIA was subsequently amended to grant a cause of action against an official, employee, or agent of a foreign state designated as a state sponsor of terrorism, who commits any of the acts covered by the Antiterrorism and Effective Death Penalty Act’s amendments to the FSIA, if the official, employee, or agent acts within the scope of his or her office, employment, or agency. This is significant, because the FSIA as otherwise enacted is not intended to affect the substantive law of liability in actions against foreign states.[246]

3. U.S. Civil Suits against Foreign Governments after the 1996 Antiterrorism and Effective Death Penalty Act

After the passage of the amendments to the Foreign Sovereign Immunities Act effected by the Antiterrorism and Effective Death Penalty Act and as of this writing, suits have been filed and decisions have been rendered against Cuba,[247] Iran,[248] and Libya.[249] Despite the amendments to the FSIA the plaintiffs in these cases have faced a number of challenges in establishing liability and even greater challenges in collecting on their judgments.

The plaintiffs’ challenges in establishing liability have included meeting the requirements of the amended FSIA, calculating damages, and withstanding constitutional objections. In Alejandre v. Cuba,[250] for example, the personal representatives of three persons[251] who died as a result of the shooting down of two unarmed civilian planes over international waters by the Cuban Air Force, succeeded in convincing the court that Cuba’s actions violated international norms and that they had met all the necessary requirements to establish an exception to foreign sovereign immunity. The unprovoked firing of deadly rockets came within the statute’s definition of “extrajudicial killing.” The Cuban Air Force was acting as an agent of Cuba when it committed the killings and Cuba had been designated as a state sponsor of terrorism. The act occurred outside of Cuban territory and the plaintiffs were all U.S. citizens at the time the planes were shot down. The court also held that the plaintiffs could base their substantive cause of action on the FSIA, because, as amended, the FSIA creates a cause of action against agents of a foreign state that act under the conditions that result in a loss of foreign sovereign immunity.[252] Moreover, since the plaintiffs had proved the Cuban Air Force’s liability under the FSIA, Cuba itself was liable under the doctrine of respondeat superior.

Flatlow v. Iran[253] is a case of another claim of extrajudicial killing. In that case, the plaintiff alleged that his daughter was the victim of a terrorist suicide bombing of an Israeli bus on which she was a passenger.[254] The Shaqaqi faction of Palestine Islamic Jihad claimed responsibility for the bombing, and investigations by Israeli authorities and by U.S. Department of State officials confirmed this claim. The Department of State also reported that

Iran had provided approximately $2 million to Palestine Islamic Jihad annually in support of its terrorist activities. The court found that the death of the plaintiff’s daughter was caused by a willful and deliberate act of extrajudicial killing and that the suicide bomber had acted under the direction of the defendants including Iran, the Iranian Ministry of Information and Security, and several Iranian officials acting within the scope of their offices. Accordingly, the court held that the defendants were liable.

In both Alejandre and Flatlow the courts awarded the plaintiffs substantial compensatory and punitive damages. In Alejandre the court noted that the FSIA as amended provides that an agent of a foreign state who commits an extrajudicial killing shall be liable for “money damages which may include economic damages, solatium, pain and suffering, and punitive damages,”[255] and accordingly held that the Cuban Air Force was liable for both compensatory and punitive damages. Under the doctrine of respondeat superior, the court stated, Cuba was liable for the same amount of damages as its agent, with the exception of punitive damages, which the FSIA expressly prohibits against foreign states.[256] The court found that the plaintiffs should be awarded compensatory damages of over $49 million against Cuba and the Cuban Air Force and punitive damages of over $137 million against the Cuban Air Force.

The most notable and surprising aspect of the court’s decision in Flatow was its determination that, in addition to compensatory damages, plaintiff could recover punitive damages, not only against officials, employees, or agents of Iran, but against Iran itself. Although, as just noted, the FSIA, by its terms, limits the imposition of punitive damages to officials, employees, or agents of a foreign state, and appears expressly to rule out punitive damages against a foreign state, the court in Flatow interpreted this limitation as applying only to causes of action brought directly against a foreign state and held that punitive damages awarded against a foreign state’s officials, agents, or employees for the provision of material support and resources to a terrorist group whose acts resulted in the personal injury or wrongful death of a U.S. national can be imputed to the foreign state under the doctrines of respondeat superior and vicarious liability.[257] Stressing the deterrent effect of punitive damages, the court determined, with the assistance of expert testimony, that an award of punitive damages in the amount of three times Iran’s annual expenditure for terrorist activities, or $225 million, would be appropriate. The total damages awarded to the plaintiff came to $247.5 million.

The court in Flatow also addressed some constitutional issues. While noting that Congress had expressly directed the retroactive application of

the amendments to the FSIA, the court rejected the defendants’ contention that such retroactive application was unconstitutional.[258] The court further addressed the question of whether there was a constitutional basis for exercising personal jurisdiction over the defendants. The court first suggested that dicta in Supreme Court decisions[259] indicated that a foreign state might not be a “person” for purposes of constitutional due process analysis. Even if it is, the court concluded, “a foreign state that sponsors terrorist activities which causes [sic] the death or personal injury of a United States national will invariably have sufficient contacts with the United States to satisfy Due Process.”[260] The court supported this conclusion by noting that the suit was brought against Iran and its officials for actions in their sovereign capacity and by suggesting that sovereign contacts should therefore be sufficient to sustain general jurisdiction over defendants. Moreover, applying the “fair play and substantial justice” standard of International Shoe,[261] the court held that since terrorism has been almost universally condemned, fair play and substantial justice are well served by the exercise of jurisdiction over state sponsors of terrorism.

The most recent decision rendered under the 1996 amendments to the FSIA at the time of this writing is Cicippio v. Iran,[262] in which the U.S. District Court for the District of Columbia ordered the government of Iran to pay a total of $65 million to Joseph Cicippio and two other plaintiffs who were abducted at gunpoint by the terrorist group Hezbollah during 1985-86 and held hostage for periods ranging from a year and a half to over five years,[263] as well as to the wives of two of the former hostages for the suffering they endured while their husbands were in captivity.[264] In summarizing its decision, the court stated:

plaintiffs have proved to the Court’s satisfaction: (1) that they were injured by acts of torture and hostage-taking; (2) that the acts were perpetrated by a group receiving material support from Iran; (3) that the provision of material support was engaged in by Iranian officials, employees, or agents acting within the scope of their

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office, employment, or agency; (4) that at the time of the acts, Iran was designated as a state sponsor of terrorism . . . ; (5) that the claimants or victims were U.S. nationals at the time the acts occurred.[265]

The court also held that the ten-year statute of limitations for actions under the FSIA did not bar the plaintiffs’ claims because the statute of limitations had been tolled during the period that Iran was immune from suit from the plaintiffs.[266] The court awarded compensatory damages only because it found, unlike the court in Flatow, that the FSIA barred the imposition of punitive damages against a foreign state. The court reportedly urged, in a letter to Secretary of State Madeleine K. Albright, that the State Department help the plaintiffs collect from the Iranian Government.[267]

The decisions in Alejandre, Flatow, and Cicippio resulted in default judgments because in all three cases the defendants did not enter an appearance. In contrast, the defendant in Rein v. Socialist People’s Libyan Arab Jamahiriya[268] appeared and mounted a vigorous challenge to the 1996 amendments to the FSIA. The plaintiffs in Rein were seeking the same relief that had been denied in Smith v. Socialist People’s Libyan Arab Jambiriya, discussed above.[269] Unlike Cuba and Iran, Libya has defended itself vigorously from the outset in U.S. court proceedings.

Libya first argued that the 1996 amendments to the FSIA are unconstitutional because they provide that federal court jurisdiction is to be determined by the Secretary of State. The court ruled that the amendments merely confirm the power or subject matter jurisdiction of U.S. courts to hear controversies between citizens of the United States and foreign states and direct the courts to decline to hear claims against states not designated as terrorist states. As to claims against states so designated, the amendments left open the discretion of the courts to hear such claims. Moreover, the court stated, Congress clearly has the power to delegate to the executive branch the responsibility of determining those foreign nations that may be accorded sovereign immunity by the courts.

Libya next contended that the court had no personal jurisdiction over it.[270] The court was of the opinion that the relevant inquiry was whether the effects of a foreign state’s actions upon the United States are sufficient to give that state fair warning that it may be subject to the jurisdiction of U.S. courts. In the court’s view, “any foreign state would know that the United States has substantial interests in protecting its flag carriers and its nationals

from terrorist activities and should reasonably expect that if these interests were harmed, it would be subject to a variety of potential responses, including civil actions in U.S. courts.”[271]

Furthermore, Libya claimed that the provisions providing for the designation of states as sponsors of terrorism violated their due process rights to a fair trial. The court noted, however, that the Secretary of State’s designation went only to establishing jurisdiction in particular cases and had no effect on the plaintiffs’ burden to prove the merits of their case. Because the Secretary’s designation implicated no fundamental right, the court said, Libya’s contention that a strict scrutiny test should be applied to the amendments was incorrect. Rather, the proper test was the rational basis approach, and thus the court held that the 1996 amendments were “a reasonable means of achieving the legitimate government purpose of protecting United States nationals and air carriers in international travel to and from the United States.”[272]

Lastly, the court found that Libya’s claim that the 1996 amendments were an impermissible ex post facto law had no merit. According to the court, the ex post facto doctrine was inapplicable to the question of whether a foreign state is immune from liability in civil tort actions. A foreign state is not criminally punished merely because the United States decides not to grant sovereign immunity to it in a civil action in a U.S. Court.

In conclusion the court denied defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state claims upon which relief can be granted. The case is currently on appeal.[273]

Assuming that the plaintiffs in the Rein case prevail on the constitutional issues, they will then have to prove their cases against Libya, which may be difficult to do. Plaintiffs will have to prove that officials, employees, or agents of Libya caused the bombing of Pan Am Flight 103 while acting within the scope of their office, employment, or agency. This burden of proof may be especially onerous because of a limitation on discovery in a case brought under the antiterrorism exception created by the AEDPA.[274] Under this provision, if the Attorney General determines that discovery in a case brought under the antiterrorism amendments would “significantly interfere with a criminal investigation or prosecution, or a national security operation related to the incident,”[275] he or she may so advise the court, and the court shall stay such discovery for twelve months subject to renewal for additional twelve month periods. Even if they succeed in proving their case and obtaining a judgment, the experience of the plaintiffs in the Alejandre and Flatow cases would indicate that the plaintiffs in Rein may face grave

difficulties in recovering on their judgment because Libyan assets in the United States are frozen and because of the difficulties they would encounter in enforcing their judgment abroad.

At this writing the plaintiffs in Alejandre, Flatow, and Cicippio are seeking to recover on their judgments against the frozen assets of the defendant sovereign states in the United States. As previously noted,[276] the AEDPA amended the FSIA to permit execution upon a judgment against the property of a foreign state, used for a commercial activity in the United States, when the judgment relates to a claim for which the foreign state is not immune as a state sponsor of terrorism. Plaintiffs have had difficulty, however, in finding property of the defendants, used for commercial purposes, in the United States. In the Flatow case, the U.S. Government has intervened in court proceedings to allege that three properties in the District of Columbia attached by the plaintiff are used for diplomatic rather than commercial purposes and therefore do not qualify for the exception to immunity of the property of a foreign state under the FSIA.[277] The United States Government has also argued that the identified properties, indeed all properties of Iran located in the United States, are “blocked” by Executive Order and are also the subject of ongoing proceedings between Iran and the United States in the Iran-U.S. Claims Tribunal.[278] The plaintiff in the Flatow case disputes the U.S. Government on all these arguments.

Besides seeking to execute their judgments in U.S. court proceedings the plaintiffs in Alejandre and Flatow have sought relief from the executive branch in the form of an order to unblock the defendants’ assets and from Congress in the form of legislation. At this writing they have been unsuccessful with the executive branch. As to Congress, they have achieved what appears to amount to a pyrrhic victory.

Specifically, on October 21, 1998, the President signed into law § 117 of the Treasury and General Government Appropriations Act of 1999, as contained in the Omnibus Consolidated and Emergency Supplemental appropriations Act of 1999.[279] Section 117, inter alia, amends 28 U.S.C. § 1610 to provide that “any property,:” including property frozen under various provisions of U.S. law, “shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (including any agency or instrumentality of such state) claiming such property is not immune under section 1605(a)(7).”[280] Section 117 also directs the

Secretary of the Treasury and the Secretary of State to “fully, promptly, and effectively assist any judgment creditor or any court that has issued any such judgment in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of such state,” if so requested by any judgment creditor.[281]

Under another provision of § 117, however, the President “may waive the requirements of this section in the interest of national security.”[282] On October 21, 1998, the same day he signed the legislation, President Clinton exercised this waiver authority on the ground that application of the other provisions of § 117 would “impede the ability of the President to conduct foreign policy in the interest of national security.”[283]

In response, plaintiffs in the Alejandre case contended that the waiver authority of the President extends only to the requirement that the Secretary of the Treasury and the Secretary of State assist plaintiffs in locating assets of defendant governments in the United States and not to the provisions requiring the assets of such states to be unblocked and subject to execution of judgments. The U.S. District Court in southern Florida has reportedly agreed with the plaintiffs and ruled that they could proceed in their efforts to be compensated from Cuban assets.[284]

Regardless of how plaintiffs in currently pending suits ultimately fare in their efforts to recover damages from states subject to suit under the 1996 and subsequent amendments to the Foreign Sovereign Immunities Act, it is time to turn to the broader question of what changes, if any, should be made in current law and practice regarding civil suits against those who commit or sponsor the commission of international crimes.

IV. CIVIL LIABILITY FOR INTERNATIONAL CRIMES:
THE NEED FOR A MULTILATERAL APPROACH

A. The Advantages of Civil over Criminal Suits

Before turning to a possible multilateral approach to civil liability for international crimes, it may be appropriate to consider more thoroughly the possible advantages of civil suits against the individual perpetrators of international crimes and the states that sponsor them, as compared to criminal prosecution of the individual perpetrators. One obvious advantage, at least if the action is pursued in the United States, is that the chances for a successful civil suit are substantially greater than those for a successful criminal prosecution. As we have seen,[285] there have been a fairly substantial number of judgments against individual defendants under the Alien Tort Claims Act and the Torture Victim Protection Act for criminal acts committed abroad. As we have also seen,[286] there have been relatively few criminal prosecutions for such crimes.

The Alien Tort Claims Act, in particular, has been a fertile source of civil suits against the perpetrators of international crimes. Under this legislation judgments have been rendered imposing civil liability for genocide, war crimes, crimes against humanity, torture and acts of terrorism.[287] The more recently adopted Torture Victim Protection Act affords a possible civil remedy to U.S. as well as alien plaintiffs but covers only torture and extrajudicical killing and requires that the perpetrator act under the actual or apparent authority, or color of law, of a foreign nation.[288]

Plaintiffs in civil suits in the United States against the perpetrators of international crimes have, by and large, been able to establish personal and subject matter jurisdiction over defendants and to overcome a host of defenses raised by these defendants. They have also benefited from the standard of proof in civil suits—preponderance of the evidence rather than proof beyond a reasonable doubt—and have been able to use discovery devices and, in some instances, conventions on discovery to obtain documents and other forms of evidence that are unavailable in criminal proceedings.[289]

As recently noted by Professor Jose E. Alvarez, civil su