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Justice & The Generals
El Salvador
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Karadzic: Opening the Door to Nonstate Actors
A major breakthrough in the law with regard to cognizable international law violations for ATCA purposes came with the Second Circuit's opinion in Kadic V. Karadzic. The problem plaintiffs faced was that the court might find that Karadzic, an unrecognized foreign leader, was not acting on behalf of the state when he authorized or approved massive human rights abuses. These included a campaign of murder, rape, forced impregnation, and other forms of torture against Bosnian Muslims and Croats. Although the issue had not been raised directly, dicta in some of the earlier ATCA cases appeared to state that norms of international law required some form of state action; in other words, violations of international law could not be committed by private persons acting without some form of state involvement. For example, torture committed solely by a person acting without such involvement does not constitute a violation of international law; nor do disappearances or summary execution. However, plaintiffs' lawyers determined that certain international law violations could be committed by individuals without any involvement by the state; these included genocide, crimes against humanity, and war crimes. Thus, while an individual could commit a single murder and not violate the international law prohibition on summary executions, he would violate international law if he committed such murders on a large scale or in a preconceived and systematic way. That would be a crime against humanity. It is likewise with genocide: the Convention Against Genocide does not require state action if the elements of the definition of genocide are met. This was a key element in the plaintiffs' arguments in the Second Circuit.

This question had never been decided previously by a U.S. court, and it was unclear if the Second Circuit would uphold the plaintiffs' arguments. However, in a remarkable opinion, the court held that "certain forms of conduct violate the law of nations whether undertaken by those acting under auspices of a state or only as private individuals." The court found that included in these "forms of conduct" by individuals that violated the law of nations were both genocide and war crimes. As the court said, "genocide is a crime under international law that is condemned by the civilized world, whether the perpetrators are private individuals, public officials or statesmen." For its conclusion the court relied upon, inter alia, the Convention Against Genocide and the Genocide Convention Implementation Act of 1987, both of which made acts of genocide illegal without regard as to whether the offender acts under color or law. With regard to war crimes, the court relied upon the law of the Nuremberg trials and Common Article 3 of the Geneva Conventions, which it found bound the parties to a conflict whether they were recognized countries or "roving hordes of insurgents." The court had no difficulty in finding that the type of atrocities alleged were violations of the customary laws of war and applied to Karadzic whether or not he was an official of a recognized state.

Subsequent to the Circuit's decision, the district court held a jury trial to assess damages (Karadzic defaulted). At the trial a number of his victims testified, and the jury came back with a $4.5 billion verdict as well as a statement strongly condemning the defendant.

The Torture Victim Protection Act
While most of the above-described cases were brought under the ATCA, a few of the cases utilized a 1992 statute, the Torture Victim Protection Act, passed primarily to permit U.S. victims of certain human rights violations to sue in U.S. courts in a similar manner as aliens were permitted to do under ATCA. However, the act is not restricted to citizens; aliens can use it as well. Some of the TVPA's proponents also believed that it was important for Congress to pass a contemporary statute that would reinforce Filartiga's interpretation of the ATCA in the courts. The legislative history of the TVPA is clear on this point, stating that the ATCA has "important uses and should not be replaced."

However, the TVPA in certain respects is more limited than the ATCA. The TVPA grants a cause of action for only two international law violations: torture and extrajudicial killing. Thus, it cannot be used as it was, for example, in FORTI, for disappearances, or as it was in Karadzic, for war crimes and genocide. The TVPA also requires that the defendant act under the authority or law of a foreign nation; thus suits against U.S. officials are prohibited unless somehow they are acting under foreign law, a very unlikely scenario. The TVPA contains a ten-year statute of limitation, which is helpful in the ATCA cases where courts have struggled with determining the appropriate limitation period.

The TVPA was first employed in Ortiz v. Gramajo, a companion case to Xuncax. Diana Ortiz was an American citizen nun tortured and sexually abused while in Guatemala. As a citizen, she could not use the ATCA and had to rely on the TVPA. She sued Gramajo under the statute, arguing that it was retroactive to the time of her torture. (The statute was passed in 1992; Ortiz was tortured in 1989.) The court agreed with Ortiz and found that the TVPA could be applied retroactively. It reasoned that torture had been universally condemned prior to Ortiz's ordeal and thus there was no compromise of Gramajo's substantive rights or manifest injustice in applying the statute to his conduct. A number of courts have agreed with this analysis.

One other important point to recognize regarding the TVPA is that its language employs the term "individual" in referring to defendants. This not only might limit suits against groups and organizations but also may exclude suits against corporations from the statute's terms.

Attempts to Sue U.S. Officials
While ATCA and TVPA suits against foreign human rights violators have been very successful, it is a different story with regard to suing U.S. officials for human rights violations committed overseas. To date, the courts have been hostile to this type of litigation. The key case in the area is Sanchez-Espinoza v. Reagan, a suit by victims of the contras in Nicaragua against various U.S. officials including President Reagan, the director of the CIA, and others responsible for funding and directing the war against the Nicaraguan government. The plaintiffs alleged that the U.S. officials had knowingly assisted in the financing and directing of the contras in carrying out a plan of terror against civilians that included torture, rape, and summary execution. In an opinion that cannot be justified legally, the D.C. Circuit dismissed the case, holding that the law of domestic sovereign immunity protected the defendants. The court reasoned (and that is a polite word) that as the actions were official, the suit was in essence one challenging official actions of the United States. As there was no waiver of sovereign immunity, the case was dismissed.

Obviously, the suit involved officials acting under color of federal law, but that should not have meant they were immune. The defendants may have acted under color of law, but the suit alleged they were acting illegally under international law and therefore outside the law in a manner that was unauthorized. Just as the court acknowledged that foreign officials are not protected in that situation (the court said its decision did not conflict with Filartiga), U.S. officials should not be immune.

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Learn about three key human-rights cases being tried in U.S. courts.

Trial History: Filartiga v. Pena-Irala

Case History: Ford et al. v. García et al.

Trial History: Romagoza et al. v. García et al.

Torture Victims
Protection Act
 
Civil trials have an important role to play as a means of enforcing human rights norms. Such cases do not require official approval. They can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries.

Command Responsibility  
Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible.