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Accountability Without Hypocrisy:
Consistent Standards, Honest History
Beth Stephens*
My specialty within the field of international law is accountability, the
study and development of mechanisms to hold accountable those who
violate international human rights standards. As a sub-specialty, I have
worked for many years on a particular approach to accountability: civil
lawsuits in U.S. federal court against individuals, corporations and governments responsible for egregious human rights abuses. This paper is an
edited version of a talk I gave at a symposium discussing responses to
rogue states. My assigned topic was the use of civil litigation as a means
of holding such states accountable for their human rights abuses.
The events of September 11, 2001 starkly reshaped our symposium.
Most of the participants talked about terrorism -- its sources and sponsors,
the legal regimes governing international and domestic responses to terrorism, and the use of force to combat it. Terrorism was my starting point
as well. But my views about accountability for such crimes are the product of my own experiences with terrorism, experiences that have led me to
a very different framework than most of those who spoke at the symposium. As a foundation for my discussion of civil remedies for terrorism and
other human rights abuses, let me first explain my own close encounters
with terrorism and terrorists of very different origins.
TERRORISM IN NEW YORK, TERRORISM IN NICARAGUA
Living in a suburb of New York City, I was deeply affected by the September 11th attacks. A relative of mine worked on a top floor of one of
the World Trade Towers. Within minutes of the attacks I watched tele-
*
Beth Stephens is an Associate Professor at Rutgers University School of
Law-Camden and a cooperating attorney with the Center for Constitutional Rights.
She has participated in the civil lawsuits described in this article in many roles,
including plaintiff and field investigator as well as attorney, and written extensively on related issues. Professor Stephens lived in Nicaragua from 1983 -89 and
worked at the Nicaraguan government’s National Commission for the Protection
and Promotion of Human Rights. This is an edited version of the remarks she pr esented at the New England School of Law symposium, Responding to Rogue
States: From Smart Bombs to Smart Sanctions, on November 9, 2001.
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vised pictures of her floor engulfed in flames. I soon learned of an extraordinary stroke of luck: she was late to work that morning, standing on
the street outside the Towers when a plane hit her office. Almost 200 of
her co-workers died in the attack, but she survived, physically unharmed.
Such stories are all too common around New York City. Everyone I
know was touched in some way. We all know people who lost relatives.
Countless were saved by near misses. Many of us saw the buildings collapse. Others were displaced from homes or offices. Most still suffer the
after-effects of these traumatic events.
September 11th, however, was the second time that terrorism has closely impacted my life. The first was in the 1980’s when I lived in Nicaragua,
and the state sponsor of the terrorism was my own government, the United
States. Supported by President Reagan and hundreds of millions of dollars
of U.S. government funding, the counterrevolutionaries (the “contra”)
fighting to overthrow Nicaragua’s Sandinista government murdered, tortured and kidnapped civilians -- peasants, teachers, engineers, doctors,
nurses, many of them my friends and neighbors. 1
In April 1987, the terror struck my inner circle of friends. I first heard
an unconfirmed report that something had happened to Ben Linder, a U.S.
civil engineer designing a mini-hydroelectric plant in a mountain village
in northern Nicaragua. I joined a sobbing gathering of friends as we
learned the horrifying details: Ben and a group of Nicaraguans were ambushed while building a dam to measure water flow through a mountain
stream. I later investigated his murder on behalf of his parents.2 After being wounded in the legs, Ben was shot at close range, a bullet to his forehead. I met the struggling widows and children of the two Nicaraguans
killed with him, one stabbed in the heart after being wounded by gunfire.
Dozens of similar accounts haunt my memories: the coffee grower tortured and murdered because he insisted on continuing to harvest his crop
despite “contra” threats; the terrified fishermen who survived an attack
with minor wounds by diving into the water off their boats; families with
young children sleeping on the floor of a rudimentary school because their
homes had been burned; teachers and doctors forced to leave their jobs in
1. For a fully documented description of “contra” human rights abuses,
see, e.g., REED BRODY, CONTRA TERROR IN N ICARAGUA: REPORT OF A
FACT -FINDING M ISSION, SEPTEMBER 1984-JANUARY 1985 (1985).
2. The Linder investigation contributed to the filing of a lawsuit against
the “contra” leaders. See Linder v. Calero Portocarrero, 963 F.2d 332 (11th Cir.
1992). I was also a plaintiff in a lawsuit seeking implementation of a decision of
the International Court of Justice that held that the U.S. attacks on Nicaragua vi olated international law. See Committee of U.S. Citizens Living in Nicaragua v.
Reagan, 859 F.2d 929 (D.C. Cir. 1988).
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rural areas in the face of death threats.
Perhaps my most chilling memory is of an interview with a “contra”
commander who cheerfully described torture and murder of civilians, all
with a smile on his face -- a killing machine trained and paid by my own
government. The Nicaraguan government also committed human rights
violations, but the vast number of horrific abuses were committed by the
forces funded, trained, organized and directed by the government of the
United States. The war inflicted tens of thousands of casualties -- and
most of their blood is on our hands.
I feel deeply for those who lost loved ones on September 11th. I cry
when I read their stories and see their faces -- bewildered children, young
women struggling to raise families alone, older widows and widowers
facing life without their longtime partners. But I also cry when I remember the close Nicaraguan friend whose sister was killed by a bomb made in
the USA. I still flinch at the memory of the colleague whose son was shot
in the head by the “contra”: he survived but lost much of his memory and
all of his emotional control. He became an angry, often frightening dependent in his parents’ home. I carry with me the anger of Ben Linder’s
father, who died knowing that U.S. government officials responsible for
the murder of his son were never punished for their crimes.
Nicaragua in the 1980’s was hardly the first or last time that the United
States government has employed the tactics of terror in the effort to overthrow a government it considers unfriendly, to install a government more
to its liking or to protect an unpopular government from removal by its
own people: Iran and Guatemala in the 1950’s, the Congo in the 1960’s,
East Timor and Chile in the 1970’s -- the examples are numerous and
well-documented.3 The numbers of casualties mount into the hundreds of
thousands, if not millions, but very few are remembered in this country.
We have wiped them from our collective memory, from our history of
ourselves.
I approached our symposium topic, responding to rogue regimes,
marked by this understanding of history. Other speakers at our symposium
recited a list of terrorist attacks aimed at U.S. military personnel and civilians. They appeared to view the United States as a generous, meek giant,
fighting terrorists with both hands tied behind our back. But when I look
at world events over the past fifty years, I do not see a gentle giant suffering from decades of unredressed attacks. The very different picture I see is
the one seen by many people around the world: the United States as a big
3. One fascinating source is the collection of declassified U.S. government
documents available on-line from the National Security Archive, George Washington University, available at http://www.gwu.edu/~nsarchiv/ (last visited Feb. 19,
2002).
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bully, throwing our weight around the world. We have received an occasional punch, none more vicious than that on September 11th, and we
have done much good, but we have also terrorized large swaths of the
world through decades of military interventions and support for terrorist
regimes and organizations.
Entering into this conversation with my friends and neighbors after September 11th, several said to me in anger, “But are you claiming that this
history of U.S. wrongdoing justifies what was done to us?” Of course not.
But it does, it should, affect the way in which we understand terrorism and
our responses to it. The battle against terrorism is not one of pitting good
people (us, and those who stand with us) against evil people (all those who
attack us or do not join us in our fight). Terrorism is a tool of combat that
has been employed all too frequently by far too many individuals, organizations and governments, including our own.
To wage an effective campaign against terrorism, we must first
acknowledge that we too have stooped to employ it. We must support
mechanisms to prevent our own use of terrorism in the future, to ensure
that we stay on the side of the good. This requires applying a consistent,
even-handed definition of terrorism to ourselves as well as to others -forgoing the hypocrisy of supporting terrorism when it serves our interests, while waging war against it when we are the target. This clearheaded
objectivity is sorely lacking in the U.S. response to September 11th.
One key step would be to join multilateral efforts to promote accountability through the rule of law, to empower alternatives to the unilateral use
of force. With this goal, the application of civil remedies for human rights
abuses is one contribution to strengthening the role of international law in
response to human rights abuses around the world.
CIVIL REMEDIES FOR HUMAN RIGHTS ABUSES
The international community has worked on many fronts over the past
fifty years to construct peaceful responses to violations of international
law. These efforts have led to the elaboration of detailed norms governing
international human rights and terrorism. Most international law before
World War II had governed interactions among states and their governments. The Nazi atrocities spurred two crucial developments. First, international norms now govern a state’s treatment of its own citizens. Abuses
such as genocide and torture are prohibited by international law when
committed within a state’s own territory as well as across national lines.
Second, international law increasingly addresses the misconduct of private
individuals and organizations, rather than just official actions. Genocide is
prohibited whether committed by government officials or by private actors. Many terrorist acts -- hijacking, hostage-taking, use of explosives --
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are international crimes prohibited for private as well as state actors.
Enforcement of these international rules remains spotty. International
mechanisms created over the past decades are still at their early stages of
development. Ad hoc tribunals have prosecuted dozens of individuals for
international crimes committed in the former Yugoslavia and Rwanda.
The permanent International Criminal Court that will soon come into being -- without the participation of the United States -- will be empowered
to bring to trial both citizens of member states and those who have committed designated international crimes within their territory.
As with most rules of international law, much of the enforcement of
human rights and anti-terrorism norms must take place within domestic
legal systems. Many nations have begun domestic criminal prosecutions
of individuals for international law violations. 4 Some involve crimes
committed within the territory of the forum state or against its citizens.
Other prosecutions, however, rest upon the principle of universal jurisdiction. Universal jurisdiction permits, or at times requires, a state to hold
accountable those responsible for certain egregious violations of international law even where the offense has no relationship to its territory or
citizens. Criminal prosecutions have been initiated throughout Europe and
in one African state, Senegal. 5
In the United States domestic legal system, accountability for international violations has been implemented through civil litigation rather than
criminal prosecutions.6 This reflects in part a reluctance of our federal
4. The most well-publicized involved the effort to extradite formerChilean General Augusto Pinochet from England to Spain to face criminal charges
arising out of the military dictatorship in Chile. For general discussions of the
Pinochet extradition battle, see Michael Byers, The Law and Politics of the Pinochet Case, 10 DUKE J. COMP. & INT 'L L. 415 (2000); Naomi Roht-Arriaza, The
Pinochet Precedent and Universal Jurisdiction, 35 NEW ENG . L. REV. 311 (2001).
5. See cases summarized in INT’ L LAW ASS’ N, FINAL R EPORT ON THE
EXERCISE OF J URISDICTION IN RESPECT OF GROSS HUMAN RIGHTS OFFENCES (2000)
and in Beth Stephens, Translating Filártiga: A Comparative and International
Law Analysis of Domestic Remedies for International Human Rights Violations , 27
YALE J. INT = L L. 1, 37 n.160 (2002).
6. A U.S. criminal statute defines torture committed outside of the United
States as a federal crime. 18 U.S.C. ' 2340a (2002) (imposing penalties for
A[w]hoever outside the United States commits or attempts to commit torture @).
Despite this statute, the U.S. government has refused to initiate prosecutions, even
though human rights groups have presented information to the government about
potential defendants present in the United States. See Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the
Context of the Proposed Hague Judgments Convention, 42 HARV. INT 'L L.J. 141,
148-49 (2001) (citing interview with Gerald Gray, Executive Director, Center for
Justice & Accountability on June 5, 2000, discussing U.S. government refusals to
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government to undertake such prosecutions. But it is also a product of
characteristics of the U.S. legal system that render civil lawsuits a more
viable and attractive option here. These include principles of jurisdiction
and choice of law that make such lawsuits possible, as well as a legal and
political culture that supports private use of the legal system to impact
upon national policies.7
U.S. civil lawsuits for human rights violations originated as the latest
application of a U.S. statute, the Alien Tort Claims Act (ATCA), which
states, “[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 . . . .”8 Originally enacted in 1789,9 the statute was largely ignored
for 200 years.10 The modern line of ATCA human rights cases began in
1980 with the Second Circuit decision in Filártiga v. Peña-Irala.11 Joelito
Filártiga, a seventeen-year-old Paraguayan, was tortured to death in Paraguay in 1976 by Americo Norberto Peña-Irala, a Paraguayan police officer, in retaliation for his father’s political opposition to the military dictatorship. Peña-Irala fled Paraguay in 1978 and moved to New York City;
the following year, the Filártiga family sued him in federal district court
seeking damages for Joelito’s torture and death. The Second Circuit ruled
that the lawsuit fell within the reach of the ATCA, holding that the statute
incorporates the law of nations in its current form and that modern international law prohibits human rights abuses committed by government officials against their own citizens. The court concluded that “official torture
is now prohibited by the law of nations” and therefore triggered jurisdiction under the ATCA.12
Since 1980, a series of decisions has developed both the list of human
rights abuses addressed by the statute and the categories of defendants
initiate prosecutions). See also Coletta A. Youngers, The Pinochet Ricochet,
NATION, May 8, 2000, at 5 (discussing U.S. government refusal to initiate torture
prosecution).
7. For a full discussion of the procedural, structural and cultural explanations for the use of civil remedies in the United States, see Stephens, supra note 5,
at 10-17.
8. 28 U.S.C. ' 1350 (2002).
9. Judiciary Act of 1789, ch. 20, ' 9(b), 1 Stat. 73, 77.
10. For the history of ATCA claims prior to Filártiga, see Kenneth C. Randall, Federal Jurisdiction Over International Law Claims: Inquiries into the Alien
Tort Claims Statute, 18 N.Y.U. J. INT 'L L. & POL. 1, 4-7 nn.15-17 (1985) (Twentyone cases claimed ATCA jurisdiction prior to Filártiga; only two sustained jurisdiction).
11. 630 F.2d 876 (2d Cir. 1980). For the full factual background, see id. at
878-80.
12. Id. at 884.
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subject to suit. Cases have addressed claims such as genocide, war crimes,
summary execution, disappearance, and arbitrary detention, as well as
torture; claims have been upheld when the court finds that the alleged tort
satisfies the international law definition of a universally prohibited offense.13 The cases have also upheld claims against commanding officers,
officials of de facto states, U.S. and local government officials, and corporations.14 The courts look to international law to define who can be held
liable for the violation. Since the international law definition of torture
requires some public action, the cases have limited torture claims to those
that allege that the defendant acted under color of official authority. 15
Since genocide is defined as an international violation when committed by
private persons, claims of genocide have been accepted even in the absence of state action.16
Despite academic debates about the intent of the ATCA, 17 all courts that
13. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied,
518 U.S. 1005 (1996) (genocide, war crimes, summary execution, torture); Abebe Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996), cert. denied, 519 U.S. 830 (1996)
(torture); Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S.
972 (1993) (summary execution); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass.
1995) (summary execution, torture, disappearance, cruel, inhuman or degrading
treatment); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987), aff’d on
reh’g, 694 F. Supp. 707 (N.D. Cal. 1988) (summary execution, torture, disappearance).
14. See, e.g., Wiwa v. Royal Dutch Petroleum Company, 226 F.3d 88 (2d
Cir. 2000), cert. denied, 532 U.S. 941 (2001) (corporation); Martinez v. City of
Los Angeles, 141 F.3d 1373 (9th Cir. 1998) (local government officials); Kadic v.
Karadzic, 70 F.3d 232 (head of de facto state); In re Estate of Ferdinand E. Marcos
Human Rights Litg., 978 F.2d 493 (commanding officer/former head of state);
Jama v. U.S. Immigration and Naturalization Serv., 22 F. Supp . 2d 353 (D.N.J.
1998) (U.S. officials and private corporation).
15. Torture is defined by the Convention Against Torture as certain acts
committed Aby or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.@ Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec.
10, 1984, art. 1(1), G.A. Res. 39/46, 39 U.N. GAOR, Supp. No. 51, at 197, U.N.
Doc. A/39/51 (1984) (entered into force for the United States Nov. 20, 1994). See
Kadic, 70 F.3d at 243 (torture proscribed by international law Aonly when committed by state officials or under color of law@).
16. See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. 4, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force for
the United States Feb. 23, 1989) (APersons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.@); Kadic, 70 F.3d at 241-42 (holding that ATCA applies to a
claim of genocide committed by a private individual).
17. Compare Beth Stephens, Federalism and Foreign Affairs: Congress=s
Power to ADefine and Punish . . . Offenses Against the Law of Nations,@ 42 WM.
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have decided the issue have concluded that the statute authorizes suits in
federal court by aliens for torts in violation of international law, no matter
where committed. For example, in Trajano v. Marcos, the Ninth Circuit
stated, “[w]e start with the face of the statute. It requires a claim by an
alien, a tort, and a violation of international law.” 18 The Supreme Court
has never addressed the issue, but has repeatedly denied petitions seeking
review of the issue.19 A modern statute, the Torture Victim Protection Act
(TVPA), creates a right to sue for torture or extrajudicial execution, extending that right to sue to U.S. citizens as well as aliens. 20 The legislative
report accompanying the TVPA stresses its support for the application of
the ATCA to international human rights cases. 21
Civil litigation can play an important role in the search for accountability for human rights violations. Litigation that leads to an enforceable
money judgment offers the plaintiff compensation for the injuries inflicted
by the defendant, punishes those responsible for those harms, and serves
as a deterrent to future abuses. Even if collection of the judgment is impossible, civil lawsuits still serve the accountability drive, offering benefits to the victim, to the human rights movement, and to society as a
whole.22 Many such lawsuits lead to judicial recognition of developing
& MARY L. R EV. 447, 520-24, 520-21 n.305 (2000) (citing cases and additional
articles) and Beth Stephens, The Law of Our Land: Customary International Law
as Federal Law After Erie, 66 FORDHAM L. REV. 393 (1997) (discussing role of
customary international law in debate over ATCA), with Curtis A. Bradley & Jack
L. Goldsmith, Federal Courts and the Incorporation of International Law, 111
HARV. L. REV. 2260 (1998) and Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).
18. 978 F.2d at 499.
19. See supra notes 13-14 and accompanying text. Even if this interpretation of the ATCA is rejected by the Supreme Court or lower courts, civil litigation
for human rights abuses committed abroad could be litigated in the United States
pursuant to the more recent statutes discussed in what follows.
20. The Torture Victim Protection Act, 28 U.S.C. ' 1350 note (2002). The
TVPA is limited by the requirement that the torture or extrajudicial execution be
committed Aunder actual or apparent authority, or color of law, or any foreign
nation.@ Id at ' 2(a).
21. See H.R. R EP. NO. 102-367, at 3 (1991), reprinted in 1992
U.S.C.C.A.N. 84, 86 (noting that the ATCA Ahas . . . important uses and should
not be replaced”).
22. See B ETH STEPHENS & M ICHAEL R ATNER, INTERNATIONAL HUMAN
RIGHTS LITIGATION IN U.S. COURTS 233-38 (1996) (explaining value of civil remedies):
[T]he plaintiffs in these cases are concerned about much more than
money. They take tremendous personal satisfaction from filing a la wsuit, forcing the defendant to answer in court or to abandon the United
States, and creating an official record of the human rights abuses i n-
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rules of law, creating a precedent for future policy development. The judicial proceeding may produce a full factual investigation, identifying those
responsible and leading to public recognition of victim’s injuries and the
defendant’s culpability. The defendant may be punished by this public
exposure as well as by legal consequences such as deportation or the denial of visas.23 The cases assist the human rights movements in the countries
where the abuses took place, offering a focus for education and organizing
about human rights violations. They also help educate people in the United States about international law, human rights and accountability. Although criminal prosecutions may entail more severe penalties for the defendant, civil remedies play an important role where criminal prosecution
is not possible, and complement criminal prosecutions where they take
place.
One of the reasons civil litigation is attractive in the United States is the
possibility of punitive damages awards. Such judgments serve as a kind of
community condemnation of the defendant, even where they cannot be
collected. Punitive damages express society’s revulsion for the defendant’s conduct, and thus resemble criminal penalties. “[P]unitive damages
advance the interests of punishment and deterrence, which are also among
the interests advanced by the criminal law . . . .” 24 United States civil litigation thus has much in common with criminal prosecutions in other legal
systems, particularly systems in which criminal prosecutions can be initiated by private parties.25
flicted on them or their families.
Id. at 234. See also Jose E. Alvarez, Rush to Closure: Lessons of the Tadic Judgment, 96 MICH. L. REV. 2031, 2101-04 (1998) (explaining value of civil remedies);
Beth Stephens, Conceptualizing Violence Under International Law: Do Tort Remedies Fit the Crime?, 60 ALBANY L. REV. 579, 603-05 (1997) (same).
23. For example, the defendant in one U.S. case, Hector Gramajo, lost his
visa from the United States as a result of the judgment in Xuncax v. Gramajo, 886
F. Supp. 162 (D. Mass. 1995) Guatemalan ex-army general barred from United
States, REUTERS , Sept. 13, 1995.
24. Browning-Ferris Industries of Vermont, Inc. v. Kalco Disposal, Inc.,
492 U.S. 257, 275 (1989). AThe Court=s cases abound with the recognition of the
penal nature of punitive damages.@ Id. at 297 (O=Connor, J., dissenting). As the
Court said in Beckwith v. Bean, A[t]he principle of permitting damages, in certain
cases, to go beyond naked compensation, is for example, and [for]the punishment
of the guilty party for the wicked, corrupt, and malignant motive and design which
prompted him to the wrongful act.@ 98 U.S. 266, 277 (1878).
25. See Stephens, supra note 5, at 18-21, 44-46.
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TERRORISM AND CIVIL LITIGATION
An early effort to bring a claim of terrorism under the ATCA was unsuccessful. Although the three-judge panel produced three splintered opinions,26 even the judge most supportive of human rights litigation rejected
the terrorism claim:
[T]he nations of the world are so divisively split on the legitimacy of such
[terrorist] aggression as to make it impossible to pinpoint an area of harmony or consensus. . . . Given this division, I do not believe that under current
law terrorist attacks amount to law of nations violations. 27
The problem identified by Judge Edwards -- lack of consensus about
what constitutes illegitimate terrorism -- persists despite intensive worldwide attention to the issue. However, it may be possible to assert a terrorism claim under the ATCA by arguing that consensus exists as to subparts
of the international violation. 28 Applying this approach, at a minimum,
terrorism claims probably can be based upon hijacking, hostage-taking,
bombings, and other offenses condemned by existing international conventions. In addition, a future case might argue that a consensus exists as
to a larger subset of terrorism. Indeed, Professor Harold Koh argued fifteen years ago that the terrorism claim in Tel-Oren could have been sustained had the judges recognized that the acts alleged in the complaint fell
within a core of universally condemned conduct. 29 Koh defines this core
to encompass an “organized and deliberate attack upon innocent civilians
without a collateral military target . . . .” 30 Where the facts of a case fall
within such a core, it might be possible to litigate an ATCA case under the
rubric of terrorism.
As part of an anti-terrorism initiative, Congress has also authorized civil
suits for victims of terrorism pursuant to a separate statute. 31 The provision authorizes a U.S. national “injured in his or her person, property, or
26. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775-98 (Edwards, J., concurring), 798-823 (Bork, J., concurring), 823-27 (Robb, J., concurring) (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985).
27. Id. at 795 (Edwards, J., concurring).
28. Applied to cruel, inhuman or degrading treatment, this approach led a
court to find that a consensus as to the exact parameters of the tort was unnecessary where consensus existed as to the particular conduct at issue in that case. See
Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995).
29. See Harold H. Koh, Civil Remedies for Uncivil Wrongs: Combating
Terrorism through Transnational Public Law Litigation, 22 TEX. INT 'L L.J. 169,
205 n.116 (1987). Id.
30. Id.
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business by reason of an act of international terrorism” to sue for treble
damages.32 “[I]nternational terrorism” is defined by statute as violent or
dangerous acts that would constitute crimes if committed within the United States, that “appear to be intended (i) to intimidate or coerce a civilian
population; (ii) to influence the policy of a government by intimidation or
coercion; or (iii) to affect the conduct of a government by assassination or
kidnapping,” and that occur outside of the United States or “transcend
national boundaries.”33 In two reported cases, courts have upheld jurisdiction under this provision over claims of terrorism filed by relatives of U.S.
citizens killed in Israel. 34
CIVIL LITIGATION AND ROGUE STATES
Each of these statutes has been used primarily against individuals, associations and corporations, not states. These uses reflect the impact of U.S.
Foreign Sovereign Immunities Act, which affords foreign states immunity
from suit unless a claim falls within a list of enumerated exceptions. 35 The
broadest exceptions permit suit for torts committed within the United
States and for certain commercial matters. In an important limitation, the
Supreme Court held that ATCA claims do not create an automatic exception to the statutory definition of foreign sovereign immunity; that is, such
suits are not permitted unless they fall within one of the standard statutory
exceptions.36
31.
32.
33.
34.
18 U.S.C. §2333 (2002)
18 U.S.C. ' 2333(a) (2002).
18 U.S.C. ' 2331(1)(a)-(c) (2002).
See Estate of Ungar v. Palestinian Auth., 153 F. Supp. 2d 76, 100
(D.R.I. 2001) (upholding subject matter jurisdiction over claims alleging that d efendants were complicit in shooting death of U.S. citizen in Israel); Boim v.
Quranic Literacy Institute, 127 F. Supp. 2d 1002, 1021 (N.D. Ill. 2000) (denying
motion to dismiss claim by parents of man killed in Israel who alleged that defendants had engaged in international terrorism by supplying funding to groups
responsible for the attack).
35. The Foreign Sovereign Immunities Act (FSIA) is codified at 28 U.S.C.
'' 1330, 1602-1611 (2002). The exceptions are set forth in section 1605(a)(1)-(7).
36. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
439 (1989) (refusing to recognize an FSIA exception for claims of gross human
rights abuses) But see Princz v. Federal Republic of Germany, 26 F.3d 1166, 117684 (D.C. Cir. 1994) (Wald, J., dissenting) (arguing that the FSIA should not be
read to bar civil suits for violations of universally accepted international norms).
The FSIA does permit human rights lawsuits to proceed where the claims fall
within the statutory exceptions. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 723 (9th Cir. 1992) (applying exceptions for waiver of i mmunity, extraterritorial torts having an impact in the United States, and expropriation of property); Letelier v. Republic of Chile, 488 F. Supp. 665, 674 (D.D.C.
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The English courts have reached a similar conclusion, protecting the
sovereign immunity of the government of Kuwait in a suit alleging responsibility for torture. 37 This decision was recently upheld by the European Court of Human Rights in a 9-8 decision finding that the grant of
immunity did not violate the European Convention’s guarantee of a right
of access to the courts. 38 The dissenters argued that all governments have
an international law obligation to provide access to their courts to adjudicate claims of torture, an obligation that cannot be evaded by the application of domestic law statutory immunities.
Litigation against sovereign states may be possible where the defendant
government is not recognized by the United States: the FSIA does not
apply if the United States government does not support the defendant’s
claim to be a sovereign state. A lawsuit against the Taliban, for example,
might have been possible despite the FSIA, given that neither the United
States nor the United Nations recognized the Taliban as the government of
Afghanistan.
In addition, a 1996 amendment to the FSIA permits civil suits for torture, extrajudicial killing and other abuses against a small group of foreign
governments.39 The new exception permits suits by U.S. citizens when the
defendant government has been designated by the U.S. government as a
“state sponsor of terrorism.” 40 The State Department has designated seven
such countries,41 and judgments have been issued pursuant to the statute
against both Cuba and Iran. 42 The statute renders some abusive regimes
subject to suit for human rights abuses, an important goal, but it does so
1980) (applying tort exception to claim arising out of assassination of political
opponent within the United States).
37. See Al-Adsani v. Government of Kuwait, 107 I.L.R. 536 (Eng. C.A.
1996).
38. See Al-Adsani v. United Kingdom, Application No. 35763/97 (Nov. 21,
2001) available at http://hudoc.echr.coe.int/ (visited February 21, 2002).
39. 28 U.S.C. ' 1605(a)(7) (2002 Supp. V).
40. 28 U.S.C. §§ 1605(a)(7)(A), (B)(ii) (2002 Supp. V).
41. The foreign States designated as sponsors of terrorism for the purposes
of this statute are Iran, Cuba, Syria, Iraq, Libya, Sudan, and North Korea. 22
C.F.R. ' 126.1(d) (2001).
42. See, e.g., Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 100
(D.D.C. 2000); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 -13 (D.D.C.
1998); Alejandre v. Cuba, 996 F. Supp. 1239, 1247-48 (S.D. Fla. 1997). Cases
have also been filed against Iraq and Libya. See, e.g., Rein v. Socialist People's
Libyan Arab Jamahiriya, 162 F.3d 748, 754 (2d Cir. 1998) (denying defendant=s
motion to dismiss); Daliberti v. Republic of Iraq, 97 F. Supp. 2d 38, 40 (D.D.C.
2000) (same).
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through non-uniform standards, setting the United States as the sole arbiter of which governments should be held accountable and which should
benefit from immunity.
CONCLUSION
Accountability for human rights violations, including terrorism, whether
committed by individuals, associations, corporations or governments, is
essential to our future well-being. The horrors of September 11th brought
that truth home to those of us living in the United States. But many people
in many parts of the world have lived with the terror of state-sponsored
human rights violations and state-sponsored terrorism, as well as the abuses of non-state fanatics. If our campaign to rid the world of terrorism truly
includes them and the crimes directed against them, we will have contributed to a revolutionary advance towards reducing such atrocities. If we
limit our focus to the abuses that endanger ourselves, we both abandon our
sisters and brothers around the world and doom our efforts to failure. In
the battle against terrorism, partial solutions are no solutions at all.