Author: dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

International Criminal Court: Recent Developments in Proposed ICC Investigations

In addition to the seven investigations being conducted by the International Criminal Court (ICC), its Office of the Prosecutor (OTP) conducts preliminary examinations of other situations to determine if an official investigation should be conducted. Four such possible preliminary examinations deserve comment.

Syria. This June there were reports that Syrian opposition and human rights groups had asked the OTP to seek authorization for an investigation into alleged crimes by the Syrian government and that discussions about a possible U.N. Security Council referral of the Syrian situation to the ICC were occurring.[1] Since then the Syrian regime has continued to attack and kill protesters with at least 3,500 protesters killed since the uprising began in March.[2] So far the OTP has not commented on Syria.

Recently four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” The Security Council, the Senators added, should be deeply troubled by the “credible threats to . . . [the] safety” of the U.S. Ambassador to Syria that forced him to leave the country. Security Council referral of Syria to the ICC also has been endorsed by the New York Times.[3]

Palestine. In January 2009, the Palestinian National Authority lodged a declaration with the ICC under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction. Later (October 2009) representatives of the Authority and the Arab League visited the Court to support the Authority’s ability to delegate its jurisdiction to the ICC.[4]

The OTP will examine issues related to its jurisdiction: first whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged crimes. The OTP has not made any determination on the issue, and recently the Prosecutor said that the issue of Palestinian statehood would have to be resolved elsewhere before the OTP issued any kind of statement on this request.[5]

The recent, and so far unsuccessful, efforts of the Authority to obtain U.N. membership for Palestine have heightened interest in the Authority’s seeking an ICC investigation of Israel’s military actions in the Gaza. Being a member of the U.N. would strengthen the Authority’s argument for ICC jurisdiction over alleged crimes committed by Israel in Gaza.[6]

Liberia. Before Liberia’s recent re-election of Ellen Johnson Sirleaf Tubman as its president, the OTP released a public statement that it was monitoring the pre-election activities of all of the candidates and political parties and that “resorting to violence will not be tolerated.”[7]

Roman Catholic Church Officials. In September a U.S. human rights NGO (the Center for Constitutional Rights) and the Survivors Network of Those Abused by Priests filed a complaint with the OTP seeking an investigation of high-level Vatican officials for alleged cover-up of rapes and sexual violence committed by individual priests as a crime against humanity.[8]

This application poses serious questions as to whether the ICC has jurisdiction over such claims, and I anticipate it will take a long time for the OTP to make any public statement about this request. I will be surprised if the OTP decides to seek approval for such an investigation from the Pre-Trial Chamber of the Court.

[1] Post: International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 6, 2011).

[2] Bakhi & Gladstone, Syria Faces New Threats as Opposition Seeks Allies, N.Y. Times (Nov. 15, 2011).

[3] US senators: Charge Assad before ICC, Google News (Oct. 25, 2011); Editorial, The Killing in Syria Goes On, N.Y. Times (Nov. 16, 2001).

[4]  ICC, Palestine, www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[5]  Id.; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[6] Reuters, Committee Is Deadlocked Over Palestinian Membership Bid, N.Y. Times (Nov. 11, 2011); Maccarone, The Palestinian Authority’s Application for United Nations Membership and Its Implications for the International Criminal Court (Sept. 27, 2011), http://www.amicc.org/docs/Palestine_and_the_ICC.pdf.

[7]  ICC prosecutor “monitoring” Liberia elections, expatica. com (Oct. 14, 2011).

[8]  Center for Constitutional Rights, In the Case Against Vatican Officials for Rape and Sexual Violence, We’ve come to the End of the Beginning (Sept. 27, 2011).

International Criminal Court: Recent Developments in Other ICC Investigations and Cases

Recent developments in the ICC’s Libyan investigation and cases have been examined.[1] There also have been interesting developments in four of the other situations under investigation by the ICC: the Democratic Republic of Congo (DRC or Congo), Uganda, Darfur (Sudan), and the Ivory Coast.

Mrs. Fatou Bensouda

Congo. The evidence and arguments in the ICC’s first case to go to trial are over, and the decision of the Trial Chamber is expected early in 2012.[2] The ICC’s Deputy Prosecutor, Mrs. Fatou Bensouda, recently reflected on the lessons of this case for the Office of the Prosecutor (OTP).[3]

  • Foremost was implementation of  the prosecution’s conceded obligation to disclose to the defense (a) incriminating evidence to be used by the prosecution; (b) evidence that is potentially exonerating or may affect the credibility of the prosecution’s evidence; and (c) evidence that is material to the preparation of the defense. Complications arose in this case because of the prosecution’s countervailing duty of confidentiality towards certain witnesses, and the Appeals Chamber decided that the Court had to respect such confidentiality agreements. Thereafter protective procedures were developed to provide such information to the defense despite such agreements.
  • Contrary to the practice of the ad hoc international criminal tribunals and U.S. courts, the ICC has held that the parties and counsel cannot meet with their witnesses in advance to discuss their anticipated testimony. Thus, what is referred to internationally as “witness proofing” is prohibited.
  • Some witnesses, especially former child soldiers, had been admitted into the Court’s witness protection program, and the Trial Chamber allowed them to testify with voice and face distortion and pseudonyms to protect their identity from the public while providing that information to the defense.[4]
  • Some other witnesses provided testimony via video link from the DRC without any technical problems.
  • The prosecution uses confidential intermediaries in the field, in the DRC in this case, to facilitate contact with potential witnesses and other sources of information. In this case, the defense alleged that some intermediaries were suggesting false testimony be given, and problems arose over the Trial Chamber’s order for disclosure of the identity of the intermediaries before protection had been provided to them.

The DRC’s presidential and parliamentary elections will be on November 28th, and reports of pre-election violence prompted the ICC’s OTP to issue a public statement that it was closely monitoring the situation and would investigate and prosecute any crimes within the Court’s jurisdiction that were committed.[5]

Joseph Kony
President Al Bashir

Uganda. The ICC has issued arrest warrants for Joseph Kony and three other top members of the Lord’s Resistance Army (LRA), but they all are at large.[6] In October President Obama ordered the deployment of 100 U.S. armed military advisors to central Africa to assist local forces in combating the LRA. The President did so pursuant to the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act. If the U.S. forces assisted in the arrest of any of these top LRA leaders, they would be turned over to the ICC.[7]

Sudan (Darfur). The ICC has issued an arrest warrant for Sudanese President Omar Hassan Ahmed Al Bashir, who is the current head of state and who is still at large.[8] Recently Bashir was in Malawi and was not arrested even though Malawi as an ICC State Party had an obligation to do so. As a result, the ICC Pre-Trial Chamber requested Malawi to submit observations on its failure to arrest Bashir.[9]

Ivory Coast. In early October the ICC’s Pre-Trial Chamber authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast.[10] Later that same month the Prosecutor visited the country to meet with government officials, members of the Opposition, victims and the country’s Truth, Dialogue and Reconciliation Commission.[11]

[1] Post: International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases (Nov. 16, 2011).

[2] Post: International Criminal Court: ICC’s First Trial To End This Week (Aug. 24, 2011).

[3] Bensouda, Update on Trials and the Closing of the First Case (Oct. 5, 2011), www2.icc-cpi.int/nr/exeres/2386f5cb-b2a5-45dc-b66f-17e762f77b1f.htm.

[4] Post: International Criminal Court: Protection of Witnesses (Aug. 19, 2001).

[5] ICC, ICC Prosecutor: we are closely monitoring the situation in the Democratic Republic of the Congo (Nov. 11, 2011).

[6] Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); ICC, Situations and Cases, www2.icc-cpi.int/Menus/ICC/Situations+and+Cases.

[7] Shanker & Gladstone, Armed U.S. Advisers to Help Fight African Renegade Group, N.Y. Times (Oct. 14, 2011); Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-Lords-resistance-army-disarmament-and-northern-uganda-r.

[8]  Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: International Criminal Court: ICC Prosecutor Updates the U.N. Security Council on Sudan (Darfur) (June 17, 2011); International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).

[9] ICC Press Release, Pre-Trial Chamber I requests observations from Malawi on the enforcement of warrants of arrest against Omar Al Bashir (Oct. 19, 2011).

[10] Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011); Post: International Criminal Court: Investigation of Ivory Coast Situation Is Authorized (Oct. 3, 2011).

[11] ICC, Statement by ICC Prosecutor Luis Moreno-Ocampo on official visit to Cote d’Ivoire, October 15-16 (Oct. 14, 2011).

International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases


International Criminal Court Building

Pursuant to referral by the U.N. Security Council, the ICC’s Office of the Prosecutor (OTP) has been investigating the situation in Libya since February 15, 2011, for possible crimes within the Court’s jurisdiction and has obtained arrest warrants for three Libyans for crimes against humanity: Muammar Mohammed Abu Minyar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi.[1]

This August a revolt pushed Muammar Qaddafi from power, and on October 20th he was killed as rebels finally wrested control of his hometown of Surt. The country was formally declared liberated three days later, setting in motion the process of creating a new constitution and an elected government.

The death of Muammar Qaddafi has set in motion the formal procedures to withdraw his arrest warrant and terminate that case. But the other two suspects are still at large, and the OTP is continuing to pursue efforts to secure their arrests and to gather evidence on these alleged crimes. Indirect communications with the suspects have been conducted to seek their surrender to the Court.[2]

The OTP also is searching for the personal assets of the suspects for the potential benefit of the victims through reparations that could be awarded by the Court. The OTP had sent requests to Libya, ICC States Parties and the five U.N. Security Council members who are not States Parties (including the U.S.) to identify, trace, seize and freeze such assets.[3]

In addition, the OTP is investigating other possible Libyan crimes within the ICC’s jurisdiction, including the following:

  • Alleged rape and other sexual violence by Qaddafi forces.
  • The National Transitional Council’s security forces’ alleged mass arrests, detention and abuse of black Africans who are suspected of being pro-Qaddafi mercenaries.
  • The National Transitional Council’s alleged mistreatment and torture of captured Qaddafi soldiers, suspected loyalists and alleged mercenaries.
  • Alleged disproportionate use of force by all parties.
  • Alleged indiscriminate attacks on civilians by NATO forces.[4]
U.N. Security Council
When the Prosecutor made his second report on Libya to the U.N. Security Council earlier this month, the U.S. Ambassador to the U.N., Susan Rice, complimented the Prosecutor “for his informative briefing and for his important contributions to laying the foundation for seeking the justice that Libyans so deserve.”  The Council’s referral of the Libyan situation to the Court, she also said, “represented an historic milestone in the fight against impunity.”[5]

[1] Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Potential Arrests of Three Libyan Suspects (Aug. 22, 2011); Post: International Criminal Court: ICC Prosecutor Seeking INTERPOL Red Notices for Gaddafi (Sept. 9, 2011).

[2] ICC, Second Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Nov. 2, 2011); ICC Prosecutor, Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011) (Nov. 2, 2011).

[3]  Id.

[4] Id.; Post: International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011).

[5] U.S. Mission to the U.N., Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, at a Security Council Meeting on Libya and the International Criminal Court (Nov. 2, 2011); U.N. Security Council Press Release, International Criminal Court Prosecutor Briefs Security Council on ‘Libya Case’ (Nov. 2, 2011).

 

 

The Alien Tort Statute, 2004-Present

Since the U.S. Supreme Court’s Sosa decision regarding the Alien Tort Statute (ATS) in 2004,[1] the lower federal courts have continued to cope with all kinds of cases under the ATS.[2]

These lower court cases generally have held the following international human rights norms to qualify for ATS lawsuits under the Sosa criteria: torture and extrajudicial killings; cruel, inhuman and degrading treatment; prolonged arbitrary detention; war crimes; terrorism; nonconsensual medical experimentation on humans; human trafficking; forced labor; child labor; and conspiracy to commit genocide or aggressive war.[3]

Examples of such post-Sosa cases include three cases arising in El Salvador: (a) the case against Alvaro Saravia for his involvement in the murder of Oscar Romero; (b) the case against former Generals Garcia and Casanova for failure to stop torture; and (c) the case against former Minister of Defense Nicolas Carranza for torture and extrajudicial killing.[4]

On the other hand, most lower federal courts have rejected the following norms as actionable under the ATS: right to life, liberty and security of the person; peaceful assembly and association; right to advice of availability of consular notification; use of pesticides and defoliation chemicals; and brigandage (plundering and banditry by bands of robbers).[5]

Another major issue in the ATS cases since Sosa is whether corporations may be held liable under ATS for aiding and abetting foreign human rights violations. This is an issue now before the U.S. Supreme Court[6] and will be examined in a subsequent post.

[1] See Post: The U.S. Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004 (Oct. 28, 2011).

[2] See David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 14 (4th ed. 2009)[“Weissbrodt”]; Krohnke, Supplement to Chapter 14 (ATS Litigation) ofWeissbrodt,Ni Aolain, Fitzpatrick & Newman,International Human Rights: Law, Policy, and Process (4th edition) (Oct. 26, 2010), http://www1.umn.edu/humanrts/intlhr/ch14_supp.html. I have not carefully researched these issues during the last year so the above summary may not be completely accurate.

[3]  Id.

[4] See Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 11, 2011); Post: Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture (Nov. 11, 2011); Post: Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing (Nov. 13, 2011).

[5] See n.2 supra.

[6] See Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing

On November 27, 1980, Manuel Franco and five other leaders of the Frente Democratico Revolucionario (FDR), a group opposed to the Salvadoran government, were abducted in San Salvador and then tortured and executed.  The Truth Commission for El Salvador found that these crimes had been committed by one or more of the country’s public security forces and that the Salvadoran Treasury Police aided and abetted the violations.[1]

Nicolas Carranza

In 2003, the San Francisco-based Center for Justice and Accountability filed a case on behalf of relatives of these six deceased political leaders in a federal court in the State of Tennessee under the U.S. Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The defendant was former Colonel Nicolas Carranza, a naturalized U.S. citizen living in Tennessee, who was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In that position, he had exercised command and control over the three units of the Security Forces — the National Guard, National Police and Treasury Police.[2]

In late 2005, a civil jury after a three-week trial found Mr. Carranza liable to four of the five Salvadoran plaintiffs for $6 million in compensatory and punitive damages for crimes against humanity, extrajudicial killing and torture. A federal appeals court in early 2009 upheld that verdict.[3] Three aspects of this case are especially noteworthy.

First, the trial court determined that the U.S. 10-year statute of limitation was equitably tolled so that the case was not barred even though it was bought at least 20 years after the events in question.[4] The appellate court affirmed this holding.[5]

Second, the trial court determined that the Truth Commission Report was admissible into evidence under the public records exception to the hearsay rule that generally excludes out-of-court statements offered to prove the truth of the matter asserted in the statement. This was the conclusion after determining that the Commission was a “public office or agency,” that the Report set forth “factual findings” as a result of an “investigation made pursuant to authority granted by law,” that it met the standards of “trustworthiness” and that there was no evidence of bias in the Commission’s methodology or conclusions. The court then concluded that the Report’s discussion of the abduction, torture and execution of Franco and the other five FDR leaders was not contradicted by any other evidence and, therefore, granted partial summary judgment to Franco’s widow on the her claim for extrajudicial killing.[6] The appellate court affirmed this ruling.[7]

Third, the trial court twice rejected the defendant’s argument that the Salvadoran General Amnesty Law barred the U.S. lawsuit after the court concluded that said law did not purport to bar claims outside El Salvador.[8] Again the appellate court affirmed this ruling.[9]

On October 5, 2009, the U.S. Supreme Court declined to review the case.[10] The unsuccessful arguments that were advanced for such review, however, are interesting.

Mr. Carranza told the Supreme Court that the lower court’s refusal to bar the suit constituted “an unwarranted intrusion into the sovereign affairs” of El Salvador and undermined “the very vehicle of [its] transformation from a war torn charnel house to a robust democracy.” Moreover, after pointing out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines, Carranza argued that the Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[11]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the ARENA political party). It argued that the ruling of the lower courts “impugns El Salvador’s sovereignty, contradicts international authority, and undermines El Salvador’s democracy.” Ignoring  its own January 1992  Law of National Reconciliation that had banned amnesty for those found responsible by the Truth Commission until at least six months after its Report was released, the Government falsely asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[12]

In addition, the Government of El Salvador told the U.S. Supreme Court that the plaintiffs had failed to exhaust their remedies in the Salvadoran courts as its Supreme Court had held in 2000 that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[13] This was a new argument, however, that should not be permitted in the appellate process. In the Sixth Circuit Court of Appeals, the Government of El Salvador, again as amicus curiae, did not mention the possible discretionary waiver of the amnesty law by Salvadoran courts and instead asserted that the amnesty law “specifically precludes the [plaintiffs’] claims . . . by granting absolute civil and criminal immunity to . . . Carranza.”[14]

In opposition to the request for Supreme Court review, the plaintiffs said that Carranza now was arguing inconsistently for his immunity in the U.S. case and for his non-immunity in the hypothetical Salvadoran case if the Salvadoran courts were to exercise their discretion to waive the immunity law. Moreover, according to the plaintiffs, Carranza in the trial court had conceded that plaintiffs had exhausted their Salvadoran remedies because the amnesty law would bar such a lawsuit in that country, and then Carranza failed to prove that he was entitled to immunity in the U.S. case.[15]

[1]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 58-6266 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html.

[2]  CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[3]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009), pet. for cert. filed, 77 U.S.L.W. 3670 (U.S. Sup. Ct. May 28, 2009) (No. 08-1467); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[4]  Chavez v. Carranza, 407 F. Supp. 2d 925, 927-30 (W.D. Tenn. 2004); Chavez v. Carranza, 2005 WL 2659186,  at 2-3 (W.D. Tenn. 2005).

[5]  Chavez v. Carranza, 559 F.3d at 491-94.

[6]  Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005); Fed. R. Evid. 801 (c), 803 (8).

[7]  Chavez v. Carranza, 559 F.3d at 496.

[8]  Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006). See also Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: El Salvador’s General Amnesty Law in U.S. Federal Courts (June 14, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011).

[9]  559 F.3d at 494-96. The plaintiffs’ argument against the amnesty law was supported in the Sixth Circuit by a group of law professors. (Law Professors Amici Brief.)

[10] Carranza v. Chavez, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009).

[11]  Petition for Writ of Certiorari, Carranza v. Chavez, 2009 WL 1511732 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[12]  Brief of Amicus Curiae Republic of El Salvador in Support of Petitioner [Carranza], Carranza v. Chavez, 2009 WL 1511733, at 2 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[13]  Id.

[14]  Brief of Amicus Curiae The Republic of El Salvador in Support of Appellant [Carranza] at 1, 3, Chavez v. Carranza (6h Cir. Apr. 22, 2008) (emphasis added).

[15]  Brief for Respondents Chavez, et al., at 1-2, 5, 7, 9-10, Carranza V. Chavez  (U.S. Sup. Ct. No. 08-1467 June 29, 2009). In reply, Carranza essentially repeated his previous arguments. Reply Brief of Petitioner, Carranza v. Chavez, (U.S. Sup. Ct. No. 08-1467 July 15, 2009).

 

Former Salvadoran Generals Held Liable by U.S. Courts for $54.6 Million for Failure To Stop Torture

We have seen the development of the U.S. federal courts use of the Alien Tort Statute (ATS) starting with the 1980 decision of the U.S. Court of Appeals for the Second Circuit and the 2004 decision of the U.S. Supreme Court.[1]

 

General Garcia
General Casanova

In 2005 former Salvadoran Generals Jose Guillermo Garcia and Carlos Eugenio Vides Casanova were unsuccessful in their defense against Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA) claims by three Salvadoran refugees who allegedly were tortured by Salvadoran military personnel at various times from 1979 to 1983.[2]

The defendants in pre-trial proceedings moved for dismissal of the case that was brought in 1999 on the basis of the 10-year U.S. statute of limitations. This motion was denied with the trial court leaving the issue of equitable tolling or suspension of the statute of limitations to be resolved by a lay jury. In 2002, after a four-week trial and 20 hours of deliberation, the jury returned a verdict for the plaintiffs, concluding that the statute of limitations was tolled or suspended until the end of the Salvadoran civil war in 1992. The amount of the verdict was $54.6 million.[3]

The defendants appealed with the sole issue on appeal being the tolling or setting aside the statute of limitations.

Affirming the lower court, the federal appeals court stated, “The record swells with evidence regarding the brutality and oppression that the Salvadoran military visited upon the people of El Salvador. The evidence includes reports on abductions, torture, and murder by the military. The evidence reveals a judiciary too meek to stand against the regime.” Moreover, the appellate court endorsed the trial court’s finding that the plaintiffs “legitimately feared reprisals from the Salvadoran military, despite the fact that the defendants resided in the United States. The military regime, in which both Garcia and Casanova had held positions of great influence, remained in power. State-sponsored acts of violence and oppression continued to ravage El Salvador. The very regime against whom the plaintiffs leveled their accusations remained intent on maintaining its power at any cost and acted with impunity to do so.” Thus, held the appellate court, the trial court did not abuse its discretion by tolling the statute of limitations until the end of the civil war in 1992.[4]

The defendants did not request the U.S. Supreme Court to review the appellate court’s decision. As a result, the case is over except for the plaintiffs’ efforts to collect the $54.6 million judgment. So far they have collected $300,000.

Parenthetically, both of the former Generals in this case have been charged with violations of U.S. immigration laws.

In early 2009, Garcia was indicted by the U.S. government for illegally entering the U.S. with a Salvadoran passport he had obtained by fraudulently telling Salvadoran officials that he had lost his prior passport when in fact it had been seized by U.S. authorities and for falsely telling the latter officials his attorney had told him that the passport had been lost. In September 2009, the indictment was dismissed upon corroborated evidence that his attorney had given him advice about his ability to obtain a substitute Salvadoran passport.[5]

Casanova was charged with assisting or otherwise participating in torture in El Salvador as grounds for removal or deportation from the U.S. The removal hearing in Orlando, Florida took place in April and May 2011, and a decision is expected in early 2012.[6]

This case is also instructive on how to prove under the ATS or TVPA that superior officials had knowledge of human rights abuses by their subordinates.  One of the plaintiffs’ witnesses was a researcher at Amnesty International (AI) during the period in question.  He testified to its practice of Urgent Actions to solicit letters from AI members to government officials about human rights abuses in their countries, its Urgent Actions about El Salvador, and a response to one of the letters from one of the defendants thanking the letter-writer for his interest.[7] This experience suggests that organizations like AI should keep good records of its requests for letters to be sent to government officials and should develop a practice of keeping copies of such letters or urging the authors of the letters to keep copies.

[1] See Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2001); Post: The Alien Tort Statute, 1980-2004 (Oct. 25, 2011); Post: The Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004 (Nov. 9, 2011).

[2]  Arce v. Garcia, 434 F.3d 1254, 1255-57 (11th Cir. 2005). The plaintiffs also asserted claims under the U.S. Torture Victims Protection Act (TVPA), 28 U.S.C. § 1350 footnote. The case was brought on behalf of the plaintiffs by the Center for Justice and Accountability, a San Francisco NGO that is “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” (CJA, About Us, http://www.cja.org/article.php?list=type&type=86; CJA, Arce v. Garcia and Casanova, http://www.cja.org/article.php?list=type&type=82.

[3]  434 F.3d at 1255. The trial evidence included the Report of the Truth Commission for El Salvador.

[4]  Id. at 1263-65. The court of appeals earlier had reversed the jury verdict on the ground that there were no equitable circumstances warranting the tolling of the statute of limitations. (Arce v. Garcia, 400 F.3d 1340 (11th Cir. 2005).) The court, however, on its own motion, vacated this prior ruling and affirmed the judgment against the defendants. (434 F.3d at 1255.)

[5]  Indictment, U.S. v. Garcia, No. 09-20045 CR-Seitz (S.D. Fla. Jan. 22, 2009); U.S. Attorney’s Office, S.D. Fla., Press Release: Former Salvadoran Defense Minister Charged with Immigration Violations (Jan. 23, 2009), http://www.usdoj.gov/usao/fls/PressReleases/090223.html; Order for Dismissal, U.S.A. v. Garcia, No. 09-20045-CR  (Sept. 30, 2009).

[6] Preston, Salvadoran in Florida Faces Deportation for Torture, N.Y. Times (April 17, 2011); CJA,CJA Reporting from Vides Casanova Removal Hearing (April 18, 2011); Trial of Vides Casanova, Former El Salvador Defense Minister Accused of Condoning Killing of American Churchwomen, Gets Underway, Fox News Latino (April 19, 2011); Blum, Update: First Round of Testimony–The Removal Case against General Vides-Casanova, Former Minister of Defense of El Salvador, http://www.cja.org (May 2, 2011); Center for Democracy in the Americas, El Salvador Update–April 2011 (May 4, 2011); email, Blum of CJA to author (Sept. 14, 2011).

[7] Michael McClintock, A Glimmer of Justice for El Salvador, amnesty now, Fall 2002, at 12.

U.N. General Assembly Again Condemns U.S. Embargo of Cuba

On October 25, 2011, the United Nations General Assembly debated a resolution: “Necessity of ending the economic, commercial, and financial embargo imposed by the United States of America against Cuba.” It passed, 186 to 2 with 3 abstentions. Only Israel joined the U.S. in opposition while three small  Pacific island nations – Palau, Marshall Islands, and Micronesia – abstained.[1]

During the debate, the Cuban Foreign Minister Bruno Rodriguez said that the sanctions have caused direct economic damages of close to $1 trillion to the Cuban people over nearly half a century. In response, the U.S. Senior Area Adviser for Western Hemisphere Affairs, Ronald D. Godard, said the embargo is a bilateral issue and “not appropriately a concern of this assembly.” Godard added that the sanctions represent “just one aspect of U.S. policy toward Cuba, whose overarching goal is to encourage a more open environment in Cuba and increased respect for human rights and fundamental freedoms.”

Before this year’s vote the U.N. Secretary-General, pursuant to a provision of last year’s resolution on the subject, invited U.N. members and agencies to comment on the embargo for a report by the Secretary-General. [2] Of the 193 U.N. Members, 142 (of 73.6%) responded, all criticizing the embargo as did the 20 U.N. agencies that replied; the U.S. and Israel did not comment. [3] Here are some of the strongest statements on the subject:

  • Australia. “Since 1996, the Government of Australia has consistently supported General Assembly resolutions calling for an end to the trade embargo against Cuba. Australia has no trade or economic legislation or measures which restricts or discourages trade or investment to or from Cuba.”
  • Brazil. “The Brazilian Government has consistently opposed the economic, commercial and financial embargo imposed against Cuba. Accordingly, Brazil has also continued to foster and pursue a growing economic relationship with Cuba. . . . The maintenance of the economic, commercial and financial embargo against Cuba is inconsistent with the dynamic regional policy that has recently been marked by the return of Cuba to dialogue and cooperation forums of the Americas.”
  • China. “This [embargo] is not only a serious violation of the purposes and principles of the Charter of the United Nations and of relevant United Nations resolutions, but also a source of immense economic and financial losses for Cuba. It is an impediment to efforts by the Cuban people to eradicate poverty, to promote their economic and social development and to attain the Millennium Development Goals, it impairs the Cuban people’s right to survival and development, and it adversely affects normal economic, commercial and financial relations between Cuba and other countries.”
  • European Union. “…the European Union and its member States have been clearly expressing their opposition to the extraterritorial extension of the United States embargo, such as that contained in the Cuban Democracy Act of 1992 and the Helms-Burton Act of 1996.”
  • Holy See. “The Holy See has never drawn up or applied economic, commercial or financial laws or measures against Cuba.”
  • Japan. “Japan shares the concern, arising from the . . . (the Helms-Burton Act) and the Cuban Democracy Act of 1992, that, if application of such legislation causes undue hardship in relation to the economic activities of the enterprises or nationals of a third party, the legislation is likely to run counter to international law regarding the extraterritorial application of domestic laws.”
  • Mexico. “Mexico emphasizes that [the embargo] has serious humanitarian consequences that are contrary to international law and, moreover, signify the abandonment of diplomacy and dialogue as the appropriate ways of settling disputes between States. . . . The Government of Mexico has also consistently opposed Cuba’s economic and political-diplomatic isolation. It has therefore firmly supported Cuba’s inclusion in all regional integration machinery in order to promote economic and commercial exchange, cooperation and development.”

This is the twentieth straight year the General Assembly overwhelmingly has adopted a resolution condemning the U.S. embargo. In 2010, for example, a resolution that called upon the U.S. to repeal the embargo was approved by 187-2, again with only Israel joining the U.S. in opposition and the same three Pacific island nations abstaining.

Here are some of the reasons why the U.S. should end the embargo:

  1. The embargo undermines U.S. foreign policy interests. It undermines the empowerment of Cuban citizens, harming them economically and depriving them of choices that could emerge from greater U.S. engagement with Cuba. (Steve Clemons, Washington Editor-at-Large, The Atlantic and Senior Fellow & Founder, American Strategy Program, New America Foundation.)
  2. The embargo hurts U.S. national security interests . It prevents normal trade and travel between our two countries. It prevents cooperation with Cuba on common security issues such as crime and terrorism. It hurts U.S. standing throughout the world by highlighting our aggression against a neighboring country that poses no threat. (John Adams, Brigadier General US Army (Retired).)
  3. The Cuba embargo runs counter to our experiences with China and Viet Nam. Both countries have Communist systems, and we fought a war with Viet Nam. Yet we trade with both. (John R. Block, Secretary of Agriculture under President Ronald Reagan and officer with Olsson Frank Weeda Terman Bode Matz PC0.)
  4. The embargo isolates the U.S. government and cuts off contact between Cubans and Americans . The embargo isolates and weakens U.S. policy makers and U.S. policies at a time of increasing integration between Latin America and the Caribbean and the global south. U.S. citizens are denied ready access to highly praised Cuban achievements in the arts and culture, education, medical and technological advances, and deprived of sustained engagements with Cuban citizens and the Cuban government to share our national virtues. (James Early,Trustee, Institute for Policy Studies, and Director of Cultural Heritage Policy, Smithsonian Center for Folklife and Cultural Heritage.)
  5. The embargo undermines the image of the United States throughout the world. The embargo is senseless and irredeemable. It is the act of a bully, based on pique. It is an abysmal moral and political failure, diminishing not Cuba but the U.S. in world opinion and respect. It has achieved the opposite of what it has sought, hurting both the Cuban people as well as U.S. interests. The embargo is opposed by virtually the entire world as well as large domestic majorities, even Cuban exiles and dissidents; yet, the U.S. government persists with its petty punitive policy, not out of reasoned principle but for internal political posturing. (Rubén G. Rumbaut, ENCASA/US-CUBA, University of California, Irvine.)
  6. The embargo imposes great suffering on Cubans . The embargo continues to inflict gratuitous and pointless suffering on the Cuban people. Children dying from cancer are denied access to potentially life-saving drugs, heart patients cannot get U.S. manufactured pace-makers, and Cuba’s cutting-edge biotechnology institutes that provide important drugs at an affordable price to the rest of the world are denied the U.S. substrates they need. (Peter Bourne, Chairman of the Board, Medical Education Cooperation with Cuba (MEDICC).)
  7. The embargo hobbles our ability to protect the environment . Oil drilling in Cuban waters creates an unprecedented urgency to rethink U.S. policy toward Cuba. An oil spill in Cuba could be disastrous to shorelines, marine life, coastal communities and livelihoods in both countries. The U.S. should eliminate political and legal obstacles that hinder its ability to share expertise if an emergency occurs in shared waters. The Obama Administration has taken some positive steps to promote scientific exchange and dialogue on environmental protection with Cuba. Environmental diplomacy-done right and carried out in good faith-can lay a foundation for real and lasting improvement in Cuba-U.S. relations. (Daniel Whittle, Senior Attorney and Cuba Program Director, Environmental Defense Fund.)
  8. The embargo is not about principle; it’s about politics . The embargo is an international embarrassment to a country that continues to claim leadership in the realm of human rights. An unnecessary and sickening relic of the Cold War, the embargo has become a political football proving that elections – and electoral votes – mean more to American politicians than fairness, justice, the human needs of the Cuban people or the lives, health and education of Cuban children. (Mike Farrell, Actor and human rights advocate.)
  9. Ending the embargo would be doing the right thing. It is time for President Obama and Congress to do the right thing, cast off the failed embargo of Cuba, and embrace a policy of engagement that will provide economic opportunities for U.S. farmers and businesses as well the workers they employ. Doing the right thing will improve economic conditions in both the U.S. and Cuba and will also over time contribute to greater social stability in the Caribbean region. (Cal Dooley, President and CEO, American Chemistry Council.)
  10. 10.   Ending the embargo is long overdue . Lifting the U.S. embargo against Cuba is long overdue. (Katrin Hansing, Associate Professor of Black and Hispanic Studies at Baruch College (CUNY).)

[1] Assoc. Press, UN Condemns US Embargo of Cuba–Again, N.Y. Times (Oct. 25, 2011); Latin America Working Group, UN Cuba Vote–Happy 20th Anniversary (Oct. 25, 2011); CubaCentral Newsblast (Oct. 21, 2011). See also Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011); Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011); Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots for Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011); Comment: Obama and Romney Out of Touch on Cuba Oct. 15, 2011); Post: U.S. and Cuba Discuss Exchange of Prisoners (Oct. 14, 2011); Comment: Cuban-Americans in Congress Criticize U.S. Willingness To Discuss Issues with Cuba (Oct. 15, 2011).

[2] U.N. Gen. Assembly Res. 65/6 (Nov. 23, 2010).

[3] Report of U.N. Secretary-General, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (Aug. 16, 2011).

International Criminal Court: Four People Recommended for Election as ICC Prosecutor

On October 25th the International Criminal Court (ICC) announced that the Search Committee for a new Prosecutor for the Court had recommended four individuals for this position.[1]

The four individuals are:

  • Fatou B. Bensonda. From Gambia, she has served as ICC Deputy Prosecutor since November 2004. Previously she held high-level positions as legal advisor and attorney for the International Criminal Tribunal for Rwanda (ICTR) and the government of Gambia.
  • Andrew T. Cayley. From the United Kingdom, he is currently a prosecutor for the Extraordinary Chambers in the Courts of Cambodia (ECCC). Previously he was a senior prosecuting counsel for the ICC, defense counsel for the Special Court for Serra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY), prosecuting counsel for the ICTY and an attorney with the British Army.
  • Mohamed Chande Othman. From Tanzania, he is currently Chief Justice of Tanzania. Previously he was Justice on the country’s Court of Appeal and held high-legal positions with the U.N. Development Program for Cambodia, the U.N. Transitional Administration in East Timor (UNTAET), the ICTR and the High-Level Commission of Inquiry on Lebanon.
  • Robert Petit. From Canada, he is currently Counsel to the Crimes Against Humanity and War Crimes Sections of Canada’s Department of Justice. Previously he served in high-legal legal positions with the ECCC, SCSL, UNTAET, ICTR and the Canadian Department of Justice.

Now the ICC’s Assembly of States Parties will endeavor to nominate and elect by consensus one of these people as the new ICC Prosecutor. That will happen at the Assembly’s meeting in December 2011.

[1] ICC Press Release, Report of the Search Committee for Prosecutor (Oct. 25, 2011). See Post: International Criminal Court: Its Upcoming Prosecutor Election (June 25, 2011).

 

 

The Alien Tort Statute, 1980-2004

For approximately the next 25 years after the Second Circuit’s decision in 1980 in the Filartiga case,[1] the lower federal courts throughout the country upheld at least 16 ATS lawsuits against foreign government officials for violations of international human rights norms.[2]

The Second Circuit itself held that the ATS was not limited to state actors and that certain acts violate the law of nations whether done by state officials or private individuals. Examples of conduct not requiring state action were genocide and certain war crimes. The court also held that de facto states could be liable for torture.[3]

Some ATS cases also were brought against foreign and U.S. corporations for allegedly aiding and abetting human rights violations.[4] One such case was a class action against Swiss banks to recover the bank accounts of Holocaust victims. After the trial court’s denial of the defendants’ dismissal motion, the banks settled the case for a payment of $1.25 billion. Another case was a class action against European insurance companies for failure to pay life insurance benefits for Holocaust victims because there were no proofs of death. This case also was settled with the companies establishing the International Commission for Holocaust-Era Claims that spent $55 million in administrative costs and paid out $35 million of claims.[5]

Three of the plaintiffs’ attorneys active in this field argue that the ATS cases contribute to a global struggle against impunity for human rights violators by:

  • “(1) helping to ensure that the United States does not remain a safe haven for such perpetrators,(2) holding individual perpetrators accountable for human rights abuses, (3) providing the victims with some sense of official acknowledgement and reparation, (4) contributing to the development of international human rights law, . . . (5) building a constituency in the United States that supports the application of international law in such cases and an awareness about human rights violations in countries in all regions of the world . . ., (6) [helping to] create a climate of deterrence and (7) [helping to] catalyze efforts in several countries to prosecute their own human rights violators.”[6]

During this 25-year period, the lower federal courts had no guidance from the U.S. Supreme Court on interpreting the ATS. That changed in 2004 with the Supreme Court’s decision in Sosa v. Alvarez-Machain[7] that will be discussed in a subsequent post.

[1] See Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); 28 U.S.C.§ 1350. During this period most cases and commentaries referred to the statute as the Alien Tort Claims Act or ATCA.

[2] E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 958-59, 962-63 (4th ed. 2009)[“Weissbrodt”]; Coliver, Green & Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 174-86 (2005)[“Coliver”].

[3] Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Weissbrodt at 962-63.

[4]  The viability of ATS cases against corporations is now an issue before the U.S. Supreme Court. (See Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[5]  Weissbrodt at 962.

[6]  Coliver at 174-86.

[7] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

The Alien Tort Statute Interpreted by the U.S. Supreme Court in 2004

The Alien Tort Statute (ATS) was enacted by the Congress in 1789 and then virtually was unused through 1979. In 1980 that changed when the U.S. Court of Appeals for the Second Circuit decided that the ATS permitted a lawsuit for money damages by two Paraguayans against another Paraguayan for the torture and killing of a member of their family. For the next 25 years without guidance from the U.S. Supreme Court the lower federal courts upheld many similar cases under the ATS.[1]

In 2004 the Supreme Court finally entered the discussion.

Justice David Souter

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the U.S. Supreme Court, 9-0, held that a single illegal detention of less than a day, followed by a transfer of custody to lawful authorities and a prompt arraignment did not violate any treaty or norm of customary international law, and, thus, the plaintiff did not have a valid claim for damages under the ATS.[2]

In reaching this holding, the Court, 9-0, in an opinion by Justice Souter, made the following conclusions regarding the ATS:

  •   The ATS is a jurisdictional statute and does not create a cause of action (id. at 713-14, 729).
  •  Torts in violation of the law of nations were recognized as being within the common law in 1789, when the ATS was adopted (id. at 714-15, 729).
  • Although it is difficult to be certain about congressional intent in adopting the ATS in 1789, Congress did not intend the ATS to be a dead letter until a future Congress or state legislature adopted a statute creating causes of action for torts against the law of nations and instead intended the ATS to be a jurisdictional basis for a “relatively modest set” of such causes of action (id. at 716-24).

The opinion for the Court, 6 to 3, went on to hold that customary international law was part of federal common law, that such international law constituted the customs and usages of civilized nations, as evidenced by the works of well qualified jurists and commentators, and that such international law to give rise to a cause of action for damages under the ATS must have the definite content and acceptance among civilized nations equivalent to the late 18th century’s ban on piracy, infringements on the rights of ambassadors and violation of safe conducts. (Id. at 724-25, 731-32.)[3]

The Court also noted, 6-3, these reasons for “judicial caution” in creating or recognizing such claims in the common law: (1) the concept of common law had radically changed from 1789 to one acknowledging that such law is created or made; (2) common law (since Eire R. Co. v. Tompkins in 1938) is now generally a matter of state law, leaving federal common law to “havens of specialty;” (3) the Supreme Court recently and repeatedly has said that creation of private causes of action generally is better left to legislative judgment; (4) creation of common law causes of action for torts against the law of nations can affect foreign relations which is the responsibility of other branches of government; and (5) Congress has not specifically authorized or encouraged the courts to create such causes of action (id. at 725-30).

In this regard, the opinion, 6-3, said that the lower federal courts since 1980 generally had taken this approach to recognizing such causes of action. It cited the Second Circuit’s opinion in Filartigav. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that the torturer was like the pirate and slave trader (542 U.S. at    732).[4] The Court also suggested that what was sufficiently definite to be recognized as such a tort as a matter of common law could change over time, citing conflicting lower court opinions, separated by 11 years, on the issue of whether a private actor like a corporation or individual could be liable for such a tort (id. at 732, n.20). In addition, the Court suggested that exhaustion of domestic remedies and case-specific deference to the political branches could be additional limitations on creation or recognition of such torts. (Id. at 733, n.21).

In resolving the specific issue before them, the Court also evaluated the relevance of certain international human rights instruments. The Universal Declaration of Human Rights, the Court said, “does not of its own force impose obligations as a matter of international law” (id. at 734-35). The International Covenant on Civil and Political Rights, on the other hand, did impose obligations on the United States because of its ratification of same, but that ratification was “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts” (id. at 735). Indeed, the more general use of such understandings or declarations that certain treaties were not self-executing was recognized by the Court earlier in its opinion (id. at 728).[5]

[1] See Post: The U.S. Alien Tort Statute, 1789-1979 (Oct. 21, 2011); Post: U.S. Court of Appeals’ 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); Post: The U.S. Alien Tort Statute, 1980-2004 (Oct. 25, 2011).

[2]  Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Court also held, 9-0, that the United States Government was immune from liability on the plaintiff’s claim under the Federal Tort Claims Act (id. at 699-712). Justice Ginsburg, concurring, reached the same result on different grounds (id. at 751-60).

[3]  Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented on the issue of the federal courts’ ability to recognize or create new causes of action for such torts as a matter of federal common law (id. at 738-51.)

[4]  See: Post: U.S. Court of Appeals’ 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011). The concurring opinion of Justice Breyer in Sosa suggested that torture, genocide, crimes against humanity and war crimes constituted matters that were appropriate for damages claims under international law as incorporated into federal common law. (Id. at 760-63.) Justice Breyer also suggested that recognition of such causes of action as a matter of federal common law was consistent with notions of international comity and that the concept of universal jurisdiction for criminal prosecutions was the way to take into account this comity consideration (id.).

[5]  The Court did not consider any treaties that were not ratified by the U.S., but the opinion for the Court strongly suggests that they would not be given any weight.