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.
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
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:
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-
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
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.
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
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 governmenthat 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-
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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
*** Top of Page 14
***
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
*** Top of Page 15 ***
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
*** Top of Page 16 ***
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
*** Top of Page 17 ***
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;
*** Top of Page 18 ***
(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
*** Top of Page 19 ***
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,
*** Top of Page 20 ***
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]
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***
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]
***
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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]
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***
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
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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
*** Top of Page 25 ***
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
*** Top of Page 26
***
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 legalll 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,
*** Top of Page 27 ***
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
*** Top of Page 28 ***
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-
*** Top of Page 29 ***
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
*** Top of Page 30 ***
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,
*** Top of Page 31 ***
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
*** Top of Page 32
***
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
*** Top of Page 33 ***
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-
*** Top of Page 34 ***
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-
*** Top of Page 35 ***
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
*** Top of Page 36 ***
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
*** Top
of Page 37 ***
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 andments.[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-
*** Top of Page 39 ***
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]
*** Top of Page 40
***
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
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***
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
*** Top of Page 42 ***
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
*** Top of Page 43 ***
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
*** Top of Page 44 ***
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
*** Top of Page 45 ***
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
*** Top of Page 46 ***
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.
***
Top of Page 47 ***
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]
*** Top of
Page 48 ***
As recently noted by Professor Jose E. Alvarez, civil suits may be
more effective than criminal prosecutions in establishing the full factual
context in which the perpetrators committed their crimes and thereby in
enhancing the prospects that the victims will have their suffering brought to
the attention of the wider community and that a definitive, historically
accurate account of the atrocities will be provided.[290] Also, unlike criminal trials, civil suits provide at
least the possibility that victims may be compensated for lost property, for
injuries suffered, or for emotional distress caused.[291]
At first blush, one may be inclined to regard civil suits as a
“second best” option to criminal prosecution. Upon reflection,
however, it is not clear that this is necessarily so. As noted, at least in the
United States, the prospects for holding the perpetrators of international
crimes civilly liable for their actions are substantially greater than the
prospects for holding them criminally liable. Moreover, as pointed out by
Professor Alvarez:
For these reasons, civil suits, controlled by
plaintiff/victims and their chosen attorneys, and not prosecutors responsive to
other agendas, may also be more effective in preserving a collective memory
that is more sensitive to victims than some judicial accounts rendered in the
course of criminal trials. Indeed, if studies about litigants’ relative
satisfactions with adversarial versus inquisitorial methods of criminal
procedure are an accurate guide, it may be that having greater control of the
process, including the selection of attorneys and the ability to discover and
present one’s own evidence and develop one’s own strategy, is itself
a value for victims, and one that is better met through civil suits such as
those now occurring in United States courts.[292]
Two other advantages of civil litigation as compared to criminal
prosecution should be noted: a civil suit may result in a judgment against a
former high ranking government official or against a state that sponsors
international crimes. As these words are being written, a five judge panel of
the House of Lords, England’s highest court, has unanimously set aside a
November 24, 1998 3-2 decision of another five judge panel of the House of
Lords that Chilean General Augusto Pinochet did not enjoy immunity, as a former
head of state, from a Spanish judge’s attempt to make him stand trial foational had been an active participant
*** Top of Page 49 ***
in the case. The 3-2 vote of the House of Lords’ panel had
reversed a unanimous decision of a three judge panel of London’s High
court on October 28, 1998 that had granted General Pinochet immunity. At this
writing a new five judge panel of the House of Lords is scheduled to decide the
immunity issue in January 1999.[293]
Regardless of the ultimate outcome in this case, it is worth noting that, if
General Pinochet were to be subject to civil suit in the United States for his
crimes, the defense of immunity for acts previously committed in his official
capacity would most likely not be available.[294]
Also, despite the controversial work of the International Law
Commission on State Responsibility, it is highly unlikely that the law will
evolve to the point where states can be held criminally liable.[295] In contrast, at least in the United States, they may be
subject to civil liability for sponsoring international crimes.
To be sure, the current U.S. (largely) unilateral approach to
civil liability has had its difficulties. Although plaintiffs have enjoyed
considerable success in establishing the civil liability of those who commit
international crimes outside of the territorial boundaries of the United
States, it has seldom been possible to collect on such judgments because of the
absence of defendants’ assets in the United States. If the
defendants’ assets in these cases are located abroad, by necessity there
will need to be international cooperation toward execution of judgments on
these assets.
With respect to civil suits against states that sponsor
international crimes, under the 1996 amendments to the Foreign Sovereign
Immunities Act and subsequent legislation, these are possible only against
states that are on the Department of State’s list of states that sponsor
terrorism. This limitation serves to minimize, although by no means eliminate,
the risk of increased tensions between the United States and defendant states,
since relations between the United States and states on the Department of
State’s list are normally already at their nadir. At the same time, as we
have seen,[296] most of the assets of these
countries in the United States are blocked and therefore arguably unavailable
for the execution of judgments. Efforts to change this situation, by executive
or legislative action, have encountered substantial obstacles.
These efforts raise two issues. First, is it appropriate, as
section 117 of the Treasury and General Government Appropriations Act of 1999
purports to do, to subject “any property” of a state sponsor of
international crimes to execution of a judgment? The problem with this approach
is that property
*** Top of Page 50 ***
used for diplomatic purposes is clearly immune from such execution
under long established norms of international law. Second, is it appropriate to
give preference to the victims of state sponsored international crimes as
opposed to those who have other claims against the state concerned but cannot
satisfy them against the blocked assets? Here, arguably, the answer is yes. It
would seem appropriate to give a preference to the victims of international
crimes who have suffered personal injury or death instead of only economic loss
through expropriation or breach of contract.
The more salient issue is whether the Foreign Sovereign Immunities
Act should be amended further to include states besides those that appear on
the Department of State’s list. Such an expansion of the FSIA’s scope
would highlight in sharp relief the executive branch’s objection that such
legislation may undermine U.S. foreign policy and result in retaliation against
the U.S. Government in foreign courts.
To raise this issue in more concrete terms, let us consider the
cases of Saudi Arabia, James E. Smrkovski, and Scott J. Nelson. Allegedly,
Smrkovski was tortured by Saudi officials in 1985 after his arrest for alleged
alcohol and gun smuggling. According to the testimony of one of his lawyers,
during his 464 days detention Smrkovski managed to get a letter to a U.S.
consular officer detailing the torture he was suffering.[297] Allegedly,
neither this officer nor any other U.S. Government official intervened with the
Saudi Government. Moreover, after his release from detention and his return to
the United States, Smrkovski allegedly attempted to get the U.S. Government to
espouse his claim against Saudi Arabia, but the Department of State declined to
do so.
For his part, Nelson was allegedly tortured by Saudi officials in
1984 after his arrest for complaining about a health and safety hazard at the
King Faisal Hospital in Riyadh, where he was employed as a monitoring systems
engineer. Upon his release from captivity and return to the United States in
1985, Nelson asked the Department of State to espouse his claim against Saudi
Arabia. The Department allegedly refused to do so, offering only to assist him
in obtaining Saudi counsel so he could bring his case in Saudi Arabia. At this
point Nelson brought suit against Saudi Arabia in federal court, claiming that
the commercial exception to the Foreign Sovereign Immunities Act applied.[298] Although a panel of the U.S. Court of
Appeals for the Eleventh Circuit ruled unanimously in his favor,[299] the Supreme Court reversed.[300] In both the Eleventh Circuit and Supreme
Court proceedings the Department of State filed briefs in support of Saudi
Arabia’s
*** Top of Page 51 ***
side of the litigation.[301]
Although attorneys for Nelson urged Congress to amend the Foreign Sovereign
Immunities Act so as to provide redress to Nelson and other persons similarly
situated, this has not been done.[302]
Saudi Arabia is, of course, a key country in U.S. foreign policy.
The world’s foremost producer of oil, it also plays a major strategic role
in the Middle East. One can therefore understand the Department of State’s
reluctance to have Saudi Arabia angry at the United States because of a lawsuit
alleging that it had committed an international crime. But as stated by one of
Nelson’s attorneys, there is “no principled reason for providing
redress in our courts for American citizens who are tortured by officials of
foreign states on the Department’s list, but denying such redress to
Americans who are tortured by officials of other countries.”[303]
So stated, the issue may appear to be whether political realities
should trump principle or vice-versa. Perhaps, however, the real issue is
whether there is a way to overcome, at least in part, the obstacles that
political realities currently place in the way of the pursuit of principle.
Specifically, one political reality in the way of amending the
Foreign Sovereign Immunities Act to cover countries other than those on the
State Department’s list is that the Act currently is retroactive in its
application to countries on the State Department’s list. If the United
States were to extend coverage of the Act to any country that has
committed the listed international crimes in the past[304] and that otherwise meets the criteria of the Act, the
response from other countries would likely be sharp and conceivably could
result in retaliation against the U.S. Government abroad. On the other hand, if
the extended coverage were to apply solely on a prospective basis, the
arguments in favor of a principled approach would be stronger.
To be sure, making further amendments to the FSIA apply only
prospectively would not help people like Scott Nelson. But it would put Saudi
Arabia and other countries on notice that, if they sponsor international crimes
against U.S. nationals, they may be subject to civil suits in U.S. courts. In
principle there is no reasonable objection to such an approach. The acts
covered by the FSIA are prohibited by jus cogens norms of international
law, constitute crimes under the national legal systems of all civilized
nations, and are subject to universal jurisdiction under international law.
Under this approach there would be two types of possible defendant
states in suits alleging the sponsorship of international crimes: states on the
Department’s of State’s list of state sponsors of terrorism and all
other states. As to the latter, possible liability would be purely prospective
rather than retroactive. Otherwise, the provisions in the FSIA denying immunity
to states
*** Top of Page 52 ***
that sponsor international crimes should apply equally to both
sets of possible defendant states.
In its present form, the FSIA allows for possible civil liability
for the commission of certain manifestations of terrorism and for torture.
Notably, the Act does not provide for possible civil liability for commission
of the so-called core crimes—genocide, war crimes, and crimes against
humanity. The question is whether it should.
An earlier version of the amendments to the FSIA included genocide
in its coverage. As pointed out by Abraham Sofaer,[305] genocide has now been clearly defined and condemned by
the Genocide Convention and other international instruments. Accordingly, in
the admittedly unlikely event that U.S. citizens are the victims of state
sponsored genocide abroad, in principle there should be a cause of action
against the state sponsor available in U.S. courts.
The situation is different with respect to war crimes and crimes
against humanity. Although, as noted above,[306] war crimes have been defined in a number of
international legal instruments, “there are in the world some genuine
disputes about operational doctrines.”[307] The same may be true a fortiori with respect to
crimes against humanity, which, until recently, were not subject to definition
by international legal instruments.[308]
This lack of clear agreement as to what acts constitute war crimes and crimes
against humanity raises an unacceptable risk that the U.S. Government might be
subject to suits in foreign courts under circumstances where reasonable persons
might differ as to whether the acts in question were war crimes or justified by
the doctrine of military necessity.[309]
Accordingly, as applied to states other than those on the State
Department’s list of state sponsors of terrorism, the FSIA would cover the
crimes of torture, extrajudicial killing, aircraft sabotage, hostage taking and
genocide and would apply prospectively only. From a strategic perspective it
would probably be appropriate also to exclude punitive damages from the types
of damages recoverable against these states. Punitive damages are generally not
available in civil law systems, and are a controversial subject in
international practice.[310] Admittedly, in
principle a strong case may be made in favor of punitive damages, but, in this
instance at least, perhaps political realities should prevail.
*** Top of Page 53 ***
Even with these limitations it is, of course, possible that the
U.S. Government could be subject to retaliatory civil suits in countries found
liable in U.S. courts. But presumably such suits would be seen as illegal
reprisals, and the United States would be able to pursue the usual diplomatic
and other remedies in response.[311] The
United States position, moreover, would be considerably strengthened if it were
successful in pursuing multilateral initiatives to complement its unilateral
legislative initiatives.
B. The Move toward a
Multilateral Approach
As a first step the United States might approach other democratic
states with a proposal that together they introduce a draft convention in the
United Nations that would require state parties to adopt national legislation
that would permit civil suits against persons who commit torture, extrajudicial
killings, aircraft sabotage, hostage taking or genocide against their
nationals, regardless of where the crimes are committed, as well as against any
state sponsors of such crimes. Since these would be crimes clearly subject to
the universality principle of jurisdiction, as well as to the more
controversial passive personality principle,[312] there would be no valid objections based on the
extraterritorial application of law.
As to objections based on sovereign immunity, this doctrine should
no longer be a shield for state sponsors of such egregious international crimes
to hide behind. Abstract notions of sovereignty should no longer mask the
reality that some governments are dominated by thugs who have no hesitation in
inflicting pain and suffering on their victims. The property of such
governments should be made available to provide compensation to their
vic-
*** Top of Page 54 ***
tims. Further, in this era when national governments are losing
autonomy and sharing power with a variety of nongovernmental actors,[313] individual victims and their
representatives should be able to engage in self-help measures through national
courts to hold governments who commit or sponsor international crimes
accountable.
The convention should also contain provisions requiring state
parties to help locate assets of and to enforce money judgments rendered by the
courts of other states parties against either individual perpetrators of the
crimes or their state sponsors. This requirement would be subject to certain
exceptions in the event of judgments rendered under circumstances that offended
fundamental international norms of due process and fairness or other strong
public policy of the state requested to locate assets and enforce the judgment.
These provisions would be coupled with a requirement that the state party
enforcing the judgment allow execution of the judgment against the civilly
liable state’s assets used for commercial purposes and located in its
territory.
Further, the convention should contain a compromissory clause that
would permit reference to the International Court of Justice or to
international arbitration of disputes between states parties over the
interpretation or application of the convention. This could serve as a
safeguard against a state party permitting a suit to be brought and a judgment
to be rendered against a state party that was not grounded in fact or law, but
was instead designed simply to punish the state defendant as an adversary of
the state party permitting the suit.
As to suits against states that are not parties to the convention,
the state parties should agree to a provision that would commit them to take
responsive action against any state that permitted a retaliatory suit in its
courts against a state party. Specifically, under this provision, the state
parties would freeze the assets of such a state and make them available to
compensate the state party subject to the retaliatory suit.
Should conclusion of a multilateral convention along the lines
described above not prove possible, an alternative approach might be to attempt
to conclude bilateral agreements along such lines, especially with states that
serve as major financial centers such as Great Britain and Germany. Such
bilateral agreements might be especially useful in improving the chances that
successful plaintiffs would be able to find assets of defendant foreign
sovereigns that they would be able to execute judgments against.
Finally, should the foreign sovereign immunity problem prove
insurmountable, the effort should be to conclude a multilateral convention or
bilateral conventions that would oblige states parties to enact legislation
along the lines of the Torture Victim Protection Act but with an expanded scope
to include extrajudicial killing, aircraft sabotage, hostage taking, and
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genocide as well. The convention would require states parties to
enforce money judgments rendered by the courts of other states parties under
this legislation and the requested state to permit execution of judgments
against the defendant’s assets located in its territory. To maximize
enforceability of such judgments, only compensatory and not punitive damages
should be recoverable. Enforcement of judgments would be subject to an
appropriate public policy exception, and reference of disputes between states
parties over the interpretation or application of the convention to the
International Court of Justice or to international arbitration should be
possible.
CONCLUSION
This Article has focused on the concept of civil liability for the
commission of international crimes as an alternative to criminal prosecution of
the perpetrators. This is not to suggest that efforts towards criminal
prosecution should, in any way, be pursued less intensely. On the contrary,
they should be intensified. At the time of this writing, there is a possibility
that the perpetrators of the bombing of Pan Am Flight 103 will be brought to
justice. According to newspaper reports,[314] Libya has apparently agreed to negotiate the turning
over of the two alleged offenders in its custody for trial under Scottish law
before a court composed of Scottish judges and sitting in the Netherlands. If
the trial actually takes place and results in a conviction of the accused, and
the plaintiffs in the Rein case succeed in obtaining and satisfying a
judgment against Libya for its sponsorship of the crime, justice will have been
fully and truly served.
Regardless of the outcome in the Pan Am Fight 103 case, however,
it is clear that prosecution of international crimes will remain a difficult
proposition. Widespread agreement on permitting civil suits to be filed in
national courts against those who commit such crimes as well as against state
sponsors could offer significant benefits. First and foremost, the threat of
substantial civil liability suits could serve as a major deterrent to state
sponsorship of such crimes. Other deterrents, such as economic sanctions or
military strikes, are employed relatively sparingly and are resorted to only in
the most egregious cases. Except in such cases governments will tend to
overlook the commission of such crimes in the interest of maintaining good
relations with the governments of the states that sponsor them. No such
inhibitions stand in the way of the victims of international crimes or their
personal representatives filing civil suits in national courts against persons
who commit international crimes or the governments that sponsor them. The
victims of international crimes and their families are motivated by a desire to
see justice done and to receive at least a measure of compensation for their
loss.
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In contrast, as we have seen, governments are leery of such suits,
not least because they can foresee themselves as defendants in foreign courts
facing the prospect of being required to pay substantial damages. Also, as U.S.
Government representatives have stressed, their very lack of control over the
filing of such suits raises the risk that such suits could undermine important
negotiations with foreign governments over important issues and create
significant tensions in foreign relations. These concerns cannot be lightly
dismissed. Ultimately, though, one has to choose between serving the
convenience of governments or pursuing justice for the victims of their
crimes.
Moreover, one reason that such suits may interfere with relations
between states is that, under present circumstances, at least outside the
United States, they are so unexpected. These expectations, however, should be
changed. States that engage in or sponsor the international crimes highlighted
in this Article—genocide, acts of terrorism and torture—should have
no expectation of immunity from civil liability. On the contrary, they should
be put on notice that, if they commit or sponsor the commission of such crimes,
they will be subject to suit in national courts and their assets will be
subject to execution to pay resulting judgments.
At a minimum one might hope that it would be possible for
governments to reach agreement on the need to enforce national judgments
against the individual perpetrators of international crimes and to cooperate in
locating their assets. Negotiations are currently being conducted under the
auspices of the Hague Conference on Private International Law with a view to
the eventual conclusion of a convention on jurisdiction and
recognition/enforcement of judgments in civil and commercial matters.[315] The issue of recognizing or enforcing
civil judgments for the commission of international crimes is not on the
Conference’s agenda. It should be.
Because of the resistance of governments, progress toward greater
civil liability for international crimes will depend upon the efforts of
nongovernmental actors to bring pressure to bear on governments. Increasingly,
such actors are playing a major role in the development of international law
and institutions.[316] Civil liability for
the commission of international crimes deserves a high priority on their
agenda.
Each High Contracting Party shall be under the obligation to
search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts. It may also, if it prefers, and
in accordance with the provisions of its own legislation, hand such persons
over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a prima facie case. (emphasis
supplied.)
Finally, even if enacted, universal jurisdiction will in all
likelihood be purely symbolic. The committee has been informed that there has
never been a single case of a signatory country to the Geneva Conventions
exercising its own criminal jurisdiction over an alleged war criminal on the
basis of universal jurisdiction. H.R. Rep. No. 104-698, at 8 (1996).
. . . Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such crimes
can the provisions of international law be enforced
. . . .
The principle of international law, which under certain
circumstances, protects the representatives of a State, cannot be applied to
acts which are considered as criminal by international law. The authors of
these acts cannot shelter themselves behind their official position in order to
be freed from punishment in appropriate proceeding . . . .
