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Alien Tort Claims Act—genocide—war crimes—violations of international law by nonstate actors: Kadic v. Karadzic. 70 F.3d 232, cert, denied, 64 U.S.L.W. 3832 (June 18, 1996)

Published online by Cambridge University Press:  27 February 2017

Judith Hippler Bello  and
Theodore R. Posner
Theodore R. Posner
Affiliation:
Sidley & Austin, Washington, D.C.
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Extract

In a suit brought by Bosnian nationals against Radovan Karadzic, die U.S. Court of Appeals for the Second Circuit held that, under the Alien Tort Claims Act, a U.S. district court may exercise jurisdiction over a nonstate actor accused of committing genocide or war crimes in violation of international law. Relying on various international agreements, including the Convention on the Prevention and Punishment of the Crime of Genocide and common Article 3 of the four Geneva Conventions, the court found that, under modern international law, genocide and war crimes are universally condemned regardless of whether the perpetrator is die agent of a state or an independent, nonstate actor. However, the court declined to extend its holding beyond these two categories of international law violations, finding that no similar consensus exists widi respect to more commonplace violations such as torture and summary execution; the current state of international law with respect to these acts concerns state actors only, according to die court.

Type
International Decisions
Information
American Journal of International Law , Volume 90 , Issue 4 , October 1996 , pp. 658 - 663
Copyright
Copyright © American Society of International Law 1996

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References

1 70 F.3d 232, 237.

2 28 U.S.C. §1350 (1994).

3 Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §1350 note (1994)). Additionally, plaintiffs asserted that, because international law is incorporated into U.S. law through the Supremacy Clause of the Constitution, Karadzic’s violations of international law necessarily gave rise to a federal question susceptible to the jurisdiction of U.S. courts.

4 Doe v. Karadzic, 866 F.Supp. 734 (S.D.N.Y. 1994).

5 The Act creates a cause of action against “an individual” who commits certain human rights violations “under actual or apparent authority, or color of law, of any foreign nation.” See Pub. L. No. 102-256, supra note 3, §2(a), 106 Stat, at 73.

6 28 U.S.C. §1350 (1994).

7 70 F.3d at 245.

8 630 F.2d 876 (2d Cir. 1980).

9 Id. at 878.

10 Id. at 881 (quoting The Paquete Habana, 175 U.S. 677, 694 (1900)).

11 726 F.2d 774 (D.C. Cir. 1984) (per curiam).

12 Id. at 792 (Edwards, J., concurring).

13 Id. at 795.

14 830 F.2d 421 (2d Cir. 1987), reu’d, 488 U.S. 428 (1989).

15 28 U.S.C. §§1330–1332, 1391, 1441, 1602–1611 (1994).

16 Amerada Hess, 488 U.S. at 439.

17 See Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1102 (9th Cir. 1990) (finding “little practical difference between a suit against a state and a suit against an individual acting in his official capacity”); Herbage v. Meese, 747 F.Supp. 60, 66–67 (D.D.C. 1990), aff’d, 947 F.2d 1564 (D.C. Cir. 1991).

18 The Torture Victim Protection Act of 1991, supra note 3, appeared to foreclose that possibility. However, it has been suggested that this Act may not accomplish that end, because it does not create jurisdiction and is therefore preempted by the FSIA. See Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons from In re Marcos Human Rights Litigation, 67 St. John’s L. Rev. 491, 512 (1993) (“The drafters of the TVPA have offered confusing guidance as to how it should be reconciled with the FSIA.”). But see Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) (finding Ethiopian official who had tortured plaintiff liable under the Alien Tort Claims Act); Xuncax v. Gramajo, 886 F.Supp. 162, 175 (D. Mass. 1995) (holding no immunity under FSIA for “acts that were beyond the scope of the official’s authority”).

19 This solution was proposed by Professor Fitzpatrick. See Fitzpatrick, supra note 18, at 515.

20 See id. at 513–16. A court could assume that a state could not possibly adopt a policy of genocide. If a putative leader of a state is engaging in such a policy, he must necessarily be acting beyond the bounds of his authority. This theory essentially would create an exception to sovereign immunity for violations of peremptory norms of international law (i.e., jus cogens violations). See id. at 516. While such an initiative would be laudable, it would not be clearly unassailable under controlling precedent. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 361 (1993) (“[H]owever monstrous … abuse [of power by police] undoubtedly may be, a foreign state’s exercise of the power of its police has long been understood for purposes of the restrictive theory [of sovereign immunity] as peculiarly sovereign in nature.”).

21 Alternatively, had the Court taken this route, it might have held that the FSIA applies only to recognized states. Although there is nothing in the definition of “foreign state” in the FSIA to support this theory, see 28 U.S.C. §1603 (1994), the rules for service of process suggest that Congress was contemplating states recognized by the United States. See id. §1608.

22 See supra note 20.