Alien tort claims in the United States
Two cases
Background
The Alien Tort Claims Act (ATCA), enacted by the first United States Congress in 1789,
provides as follows:
[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.
As a matter of historical record, the ATCA was rarely invoked in the first 190 years of its
existence. However, in a steady stream of decided cases, commencing with Filártiga v.
Peña-Irala 630 F 2d 876 (1980), the ATCA has become a vehicle for civil litigation in the
federal courts of the United States in respect of human rights abuses and other violations of
public international law where the alleged conduct occurred outside the United States (e.g. in
Paraguay, Bosnia-Herzegovina, Burma) and the victim is a foreign (i.e. non-United States)
national.
State torture in Paraguay
Filártiga v. Peña-Irala
630 F 2d 876 (1980) (United States Court of Appeals, Second Circuit)
Background
The plaintiffs, Dolly Filártiga and her father Joel Filártiga, were citizens of Paraguay living in
the United States where they had applied for political asylum. The defendant, Americo PeñaIrala, who had entered the United States under a visitor’s visa, formerly had been Inspector
General of Police in Paraguay.
The plaintiffs commenced proceedings against the defendant in the United States District
Court for the Eastern District of New York founded on the ATCA. In these proceedings, the
plaintiffs contended that the defendant had been responsible for torturing to death Joelito
Filártiga, brother/son respectively of the plaintiffs, while he was in police custody in
Paraguay. The originating process was served on the defendant at the Brooklyn Naval Yard
where he was in custody pending deportation from the United States for overstaying his
visitor’s visa.
Disposition
State torture i.e. torture perpetrated under colour of official authority, as in the present case,
constituted a violation of a universally accepted norm of public international law.
Accordingly, the plaintiffs being aliens, and the defendant having been served with the
originating process in the United States, the District Court had jurisdiction to entertain the
proceedings.
2
KAUFMAN, Circuit Judge [footnotes and some citations omitted] ... [880] Since appellants
[plaintiffs] do not contend that their action arises directly under a treaty of the United States,
a threshold question on the jurisdictional issue is whether the conduct alleged violates the law
of nations. In light of the universal condemnation of torture in numerous international
agreements, and the renunciation of torture as an instrument of official policy by virtually all
of the nations of the world (in principle if not in practice), we find that an act of torture
committed by a state official against one held in detention violates established norms of the
international law of human rights, and hence the law of nations. ...
[887] Although the Alien Tort Statute [ATCA] has rarely been the basis for jurisdiction
during its long history, in light of the foregoing discussion, there can be little doubt that this
action is properly brought in federal court. This is undeniably an action by an alien, for a tort
only, committed in violation of the law of nations. The paucity of suits successfully
maintained under the section is readily attributable to the statute’s requirement of alleging a
“violation of the law of nations” (emphasis supplied) at the jurisdictional threshold. ...
[888] [E]arlier cases did not involve such well-established, universally recognized norms of
international law that are here at issue. ...
[890] In the modern age, humanitarian and practical considerations have combined to lead the
nations of the world to recognize that respect for fundamental human rights is in their
individual and collective interest. Among the rights universally proclaimed by all nations, as
we have noted, is the right to be free of physical torture. Indeed, for purposes of civil
liability, the torturer has become― like the pirate and slave trader before him―hostis humani
generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional
provision enacted by our First Congress, is a small but important step in the fulfilment of the
ageless dream to free all people from brutal violence.
Dismissal reversed
Atrocities in Bosnia-Herzegovina
Kadic v. Karadžić
70 F 3d 232 (1995) (United States Court of Appeals, Second Circuit)
Background
The fourteen plaintiffs were Croat and Muslim citizens of Bosnia-Herzegovia, an
internationally recognized sovereign state, formerly part of Yugoslavia. The
defendant, Radovan Karadžić, was the president of a self-proclaimed Bosnian-Serb entity
within Bosnia-Herzegovina (sometimes referred to as “Srpska”) which had not received
international recognition as a sovereign state.
The plaintiffs commenced proceedings against the defendant in the United States District
Court for the Southern District of New York founded on the ATCA. In these proceedings,
the plaintiffs contended that the defendant had commanded Bosnian-Serb military forces
systematically to commit atrocities in Bosnia-Herzegovia including genocide and war crimes.
The plaintiffs or deceased family members were the victims of these offences. The
3
originating process was served on the defendant at the Inter-Continental Hotel where he was
staying while on a visit to New York.
Disposition
The District Court had jurisdiction to entertain the proceedings. Genocide and war crimes
constituted violations of public international law. In this regard, it was not a relevant
consideration that the defendant was a non-state actor who had committed the alleged
violations of public international law in the capacity of a private individual.
NEWMAN, Chief Judge [footnotes and some citations omitted] [236] Most Americans would
probably be surprised to learn that victims of atrocities committed in Bosnia are suing the
leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan.
Their claims seek to build upon the foundation of this Court’s decision in Filártiga v. PeñaIrala 630 F 2d 876 (2d Cir 1980), which recognized the important principle that the venerable
Alien Tort Act 28 USC § 1350 (1988), enacted in 1789 but rarely invoked since then, validly
creates federal court jurisdiction for suits alleging torts committed anywhere in the world
against aliens in violation of the law of nations. ...
[239] Karadžić contends that appellants [plaintiffs] have not alleged violations of the norms
of international law because such norms bind only states and persons acting under colour of a
state’s law, not private individuals. …
We do not agree that the law of nations, as understood in the modern era, confines its reach to
state action. Instead, we hold that certain forms of conduct violate the law of nations whether
undertaken by those acting under the auspices of a state or only as private individuals. An
early example of the application of the law of nations to the acts of private individuals is the
prohibition against piracy. ...
The liability of private persons for certain violations of customary international law and the
availability of the Alien Tort Act to remedy such violations was early recognized by the
Executive Branch in an opinion of Attorney General Bradford in reference to acts of
American citizens aiding the French fleet to plunder British property off the coast of Sierra
Leone in 1795. The Executive Branch has emphatically restated [240] in this litigation its
position that private persons may be found liable under the Alien Tort Act for acts of
genocide, war crimes, and other violations of international humanitarian law. ...
[After detailed consideration of the decided cases, the court agreed that genocide and war
crimes are violations of public international law for which a private individual who is a nonstate actor may be liable.]
Dismissal reversed