The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.
The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals [including the Nuremberg, Tokyo, and U.N. ad hoc tribunals for the former Yugoslavia and Rwanda]. It finds that these rules likewise do not enable it to conclude that any such exception exists in customary international law in regard to national courts.39
Despite this rebuke, Belgium’s efforts to impose its own version of worldwide justice continued. By the spring of 2003, more than two dozen allegations had been lodged under its universal jurisdiction law, including complaints against Israeli Prime Minister Ariel Sharon, former President George H. W. Bush, former Secretary of Defense and current Vice President Dick Cheney, Secretary of State Colin Powell, and General Tommy Franks, all related to the 1991 or 2003 Iraqi wars.
Visiting Brussels in June 2003, Secretary of Defense Donald Rumsfeld delivered a blunt message. United States officials could not be expected to travel to a country where they might be the target of frivolous, politically motivated charges. American support for the continuing presence of NATO headquarters in Belgium, he made clear, was at issue. With this, Belgium backed off. The law had, in fact, been turned against its own foreign minister, Louis Michel, who was accused of international violations because of an arms sale to Nepal. In August 2003 the law was amended to restrict its reach to cases involving Belgian nationals or residents as perpetrators or victims.40
Although the checkered history of Belgium’s “universal jurisdiction” law presents more than a few elements of the theater of the absurd, from an international law perspective, its rise and fall are highly significant. As suggested above, international law is first and foremost a form of customary law, and it is made by state practice. With Belgium’s retreat—in the face of serious objections from the accused persons’ own countries—the whole concept of universal jurisdiction was dealt a serious, and well-deserved, blow. As a Belgian senator who supported the law correctly noted of its revision, “[w]e didn’t lose everything, but we lost a lot.... we moved backward rather than forward.”41
Poor Relations: The Alien Tort Claims Act
The United States’ Alien Tort Claims Act (ATCA) is sometimes also cited as an example of the exercise of universal jurisdiction.42 In fact, there are important distinctions between efforts to invoke a universal criminal jurisdiction, permitting any state to prosecute and punish the citizens and officials of any other state for international “offenses,” and efforts to sue government officials in tort for alleged violations of international law. First, of course, is the criminal nature of one kind of proceeding, and the civil nature of the other. Second, the Supreme Court has made clear that the ATCA is subject to the constraints of foreign sovereign immunities, as recognized in the United States under the Foreign Sovereign Immunities Act of 1976 (FSIA).43 In addition, while universal criminal jurisdiction suggests that authority can be exercised over an accused anywhere in the world, through an international arrest warrant, the ATCA can be invoked only if the defendant can be found in the United States itself. Nevertheless, to the extent that the courts of the United States have, in a handful of cases, adjudicated claims for tortious violations of international law, the ATCA raises many of the same policy concerns as does criminal universal jurisdiction.
The Forgotten Statute
The ATCA is nothing if not an enigma. Enacted as part of the Judiciary Act of 1789 (which established the federal court system in accordance with the newly adopted United States Constitution), its purpose and meaning are utterly obscure. The law 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.”44 No legislative history dealing with the provision has been found, and before 2004 it had never been construed by the United States Supreme Court. For nearly two hundred years after the ATCA became law, it was effectively dormant. In 1980, however, the family of a murdered Paraguayan youth invoked the law to sue his alleged killer, a former Paraguayan police official, in a New York federal court. The victim had been tortured. All the parties were citizens of Paraguay, but all were in the United States at the time the action was brought.
Although the trial court dismissed the case for lack of jurisdiction, in Filartiga v. Pena,45 the United States Court of Appeals for the Second Circuit reversed, concluding that the suit could be maintained under the ATCA. The judges reasoned that the general injunction against state-sponsored torture had become so widely accepted that the court could properly conclude that “official torture is now prohibited by the law of nations.”46 The court failed, however, to identify a specific cause of action that would permit a tort claim to be based on official torture and suggested that the law of Paraguay might well apply to the case. The court dealt with the question of the United States’ right to adjudicate the case as follows:
Common law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred. . . .
It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction. A state or nation has a legitimate interest in the orderly resolution of disputes among those within its borders, and where the lex loci delicti commissi is applied, it is an expression of comity to give effect to the laws of the state where the wrong occurred. . . .
. . . Here, where in personum jurisdiction has been obtained over the defendant, the parties agree that the acts alleged would violate Paraguayan law, and the policies of the forum are consistent with the foreign law, state court jurisdiction would be proper. Indeed, appellees conceded as much at oral argument.47
The court further concluded that the federal courts could properly hear such a claim in light of the Constitution’s limitation on federal court jurisdiction, because the law of nations was considered part of “federal common law.”
Four years later, in Tel-Oren v. Libya, the United States Court of Appeals for the District of Columbia Circuit also addressed the ATCA.48 In that case, a group of mostly Israeli citizens sought damages from Libya, the Palestine Liberation Organization (PLO), and various affiliated groups, arising out of a 1978 terrorist attack on an Israeli civilian bus. The trial court had dismissed the action, concluding that it lacked subject matter jurisdiction.
A three-judge panel of the District of Columbia Circuit affirmed that decision but suggested three separate reasons for so doing. Judge Harry Edwards accepted the reasoning of the court in Filartiga, but concluded that it was inapplicable to this case since the principal defendants, that is, the PLO, were private individuals rather than state actors. He discerned no right under international law to be free of attacks by private individuals in the circumstances presented. Judge Robert H. Bork rejected the reasoning in Filartiga, correctly noting that the Second Circuit had distinctly failed to identify any actual cause of action, recognized by international law, that could be enforced in a suit under the ATCA. He concluded that the court should not imply such an action in an area, foreign affairs, otherwise committed by the Constitution to the political branches. Finally, Judge Roger Robb agreed that the case must be dismissed, but because the entire area presented a political question, involving American foreign policy and “standards that defy judicial application.” The matter was, in short, nonjusticiable in the first instance. The result, as Judge Bork stated at the close
of his opinion, was that “it is impossible to say even what the law of this circuit is” with respect to the ATCA.49
Rights as Opposed to Rights of Action
The situation improved little in the twenty years after Tel-Oren was decided—although an increasing number of ATCA cases were brought, some attempting to expand the statute beyond the limits suggested by Judge Edwards, to reach private entities.50 The Supreme Court first addressed the ATCA, albeit tangentially, in Argentine Republic v. Amerada Hess Shipping Corp.,51 in which it made clear that actions brought under the ATCA are subject to the requirements of the FSIA.52
In that case, the owner and lessee of an oil tanker sued the Argentine government for damage done to the vessel during the 1982 Falklands War between Argentina and Great Britain. The ship had been attacked by Argentine forces and, as a result, later had to be scuttled. The Supreme Court held that the action, which had been brought under the ATCA, as well as the general admiralty and maritime jurisdiction of the United States and “universal jurisdiction,” was properly dismissed because the FSIA provided Argentina immunity in these circumstances.
Significantly, however, in rejecting the plaintiff’s claim that various international agreements, binding on both Argentina and the United States, created an exception to the FSIA in this instance, the Court emphasized the critical distinction between a substantive violation and the right to sue. It noted that there is an exception to the FSIA’s general recognition of foreign state sovereign immunity, in which the law’s provisions would “expressly conflict” with an international agreement to which the United States was a party when the statute was enacted. The Court went on to point out, however, that the relevant conventions in this case “only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs. They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.”53
This, of course, was the critical problem, correctly identified by Judge Bork in Tel-Oren, with the Second Circuit’s analysis in Filartiga, and with theories of universal jurisdiction generally. Although the ATCA permits the federal courts to hear cases for torts “in violation of the law of nations or a treaty of the United States,” it does not create or identify any specific cause of action, such as battery or negligence in domestic tort law, on which a private plaintiff can actually sue. That is, the law does not set forth the circumstances in which an injured alien would be entitled to a judgment in court—specifying what substantive elements (the offensive or impermissible conduct, level of intent, and kind of physical or mental harm) he or she must prove in order to recover. Similarly, it does not set forth the burden of proof the plaintiff must carry. Must the plaintiff prove the necessary elements by a preponderance of the evidence, by clear and convincing evidence, or even by the highest standard of beyond a reasonable doubt, normally reserved for criminal cases? Further, the ATCA does not address the question whether there might be affirmative defenses, or mitigating factors, that a defendant would be entitled to plead in justification or what the proper measure of damages would be in any particular case. Is a recovery to be limited to compensatory damages, or are punitive damages also to be awarded and, if so, at what level? Are compensatory damages to be limited to economic interests?
The court in Filartiga suggested that these questions were not jurisdictional but “choice of law” issues, to be resolved later. This was a neat answer but not sufficient when the relevant jurisdictional statute is predicated on the existence of a “tort” in the first instance. In 1789, as today, a tort was more than merely a bad act. It was, and remains, a legally cognizable wrong, for which the law provides a remedy. Although international law, by custom, by treaty, or by both, may well impose certain duties on nation-states (and arguably on individuals in certain limited circumstances), it simply does not provide the balance of the equation; and it did not do so in 1789.
In Tel-Oren, Judge Edwards disagreed. He conceded this fundamental difficulty with the court’s approach in Filartiga, suggesting that it “is consistent with the language of section 1350, [but] places an awesome duty on federal district courts to derive from an amorphous entity—i.e., the ‘law of nations’—standards of liability applicable in concrete situations.”54 This, he noted, was not impossible, but he concluded that “the formidable research task involved gives pause, and suggests consideration of a quite plausible alternative construction of section 1350.”55 That alternative was to refer to the domestic tort law of the United States for the necessary cause of action. Leaving aside the obvious question of which U.S. tort law should be applied (there being at least fifty possible models, as well as the District of Columbia, the Commonwealth of Puerto Rico, the Virginia Islands, Guam, or some indeterminate federal version to choose from), Judge Edwards’ suggestion of an alternative approach based on a desire to avoid a formidable—and probably impossible—research task reveals most clearly that the ATCA, as interpreted by the Second Circuit in Filartiga, is an invitation to the courts to make up the law as they go along.
This probably was not Congress’s intention. However, what Congress did intend remains so obscure that it is impossible to say with any certainty. Judge Bork attempted to make sense of the law by suggesting that Congress had in mind the three violations of the law of nations then generally recognized: (1) violation of safeconducts, (2) infringement of ambassadorial rights, and (3) piracy. This certainly is plausible and, more to the point, was the approach taken by the Supreme Court when it finally did address the ATCA, on the merits, in the spring of 2004.
The “Law of Nations”—Paradigms of 1789
Sosa v. Alvarez-Machain was the latest in a long line of decisions arising out of the 1985 torture and murder of Enrique Camerena-Salazar.56 Salazar was a U.S. Drug Enforcement Administration agent who was working in Mexico at the time he was killed. American officials came to believe that Alvarez-Machain, a Mexican physician, had participated in Salazar’s torture—specifically by keeping the man alive during his “interrogation.” Alvarez-Machain was indicted and, after efforts to secure his extradition from Mexico failed, U.S. officials hired several Mexican nationals (including Mr. José Sosa) to seize Alvarez-Machain and bring him to the United States. This led to the Supreme Court’s ruling in United States v. Alvarez-Machain,57 in which it decided that the federal courts could exercise jurisdiction over a defendant in these circumstances, even if he had been brought to the United States by “forcible abduction.”
In the trial, Alvarez-Machain was acquitted. In 1993 he brought civil actions against the United States, under the Federal Tort Claims Act (FTCA),58 and against the persons who seized him in Mexico (including Sosa), under the ATCA. The Supreme Court dismissed both claims, concluding that the FTCA’s waiver of sovereign immunity did not apply in these circumstances, and that the ATCA was far too narrow in scope to support the action against Sosa.
In addressing the ATCA, the Court recognized that—on its face—the statute was merely jurisdictional. Nevertheless, it also concluded that “at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.”59 As Judge Bork had suggested in his Tel-Oren opinion twenty years before, the Court concluded that there were only three such claims:
We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.60
The Court conceded that it was possible that new torts, cognizable under the ATCA, could develop over time but cautioned that “[w]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by th
e civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”61 It was this requirement that the Court held to be “fatal to Alvarez’s claim.”62 Although there are a number of international instruments, such as the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, that recognize a right against arbitrary arrest or detention, the Court concluded that neither document imposed binding legal obligations that were “self-executing,” that is, enforceable in court without further congressional action. Further, although there was some evidence of a generalized consensus among states against arbitrary detention, this was insufficient to establish a binding norm of customary international law.63 Alvarez-Machain’s ACTA claim was, therefore, dismissed.
This aspect of the Court’s ruling met instant criticism—first in Justice Antonin Scalia’s opinion (joined by Justice Clarence Thomas and Chief Justice William Rehnquist), concurring in part and in the judgment. Scalia noted that the Court’s formulation, that no development since the ACTA was enacted in 1789 had “’categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law,’” effectively turned the established rule regarding federal common law “on its head.”64 Since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), he noted, federal courts cannot create “federal common law” without some affirmative congressional authorization. “In holding open the possibility that judges may create rights when Congress has not authorized them to do so, the Court countenances judicial occupation of a domain that belongs to the people’s representatives.”65
The Court’s suggestion in Sosa, that new causes of action cognizable under the ATCA may develop as the law of nations develops, opened a door that should have been left closed. This is true even though, assuming the lower federal courts will heed the Supreme Court’s clear directions that no claims be recognized that enjoy “less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATCA] was enacted,” the opportunities for judicial mischief should be comparatively limited. Widespread state practice demanding respect for safe conducts and diplomatic personnel did exist in 1789, and piracy was widely assumed to be a “universal” offense, even if there was little practice supporting a right to both prescribe and prosecute that offense on the international level. Because of the lack of widespread and consistent state practice supporting even core portions of contemporary human rights law, and the inherently controversial nature of binding norms that regulate a state’s relationship to its own citizens, it is unlikely that more modern norms will achieve the status of these three in the near future. Indeed, in Sosa v. Alvarez-Machain, the Supreme Court took an appropriately skeptical approach to such claims.
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