Conceptualizing Violence under International Law: Do Tort Remedies Fit the Crime?

Article excerpt

TORT

A private or civil wrong or injury, . . . for which the court will provide a remedy in the form of an action for damages.(1)

CRIME

[A]n act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, . . . punishment[]. . . (2)

VIOLENCE

Unjust or unwarranted exercise of force . . . (3)

I. INTRODUCTION

In a domestic legal system, violence triggers two interrelated sets of laws and procedures: criminal and tort. Acts of violence the unjust or unwarranted use of force--constitute crimes. Where death results, the violence is labelled homicide and is ranked as some degree of manslaughter or murder.(4) Where lesser physical harm is inflicted, the violence is defined as the crime of assault.(5) Crimes render the perpetrator subject to criminal prosecution and punishment.

The same acts of violence also constitute torts--envisions of rights which may be redressed through civil litigation.(6) Tort law permits a victim to sue the violent aggressor for damages or compensation.(7) In most legal systems, both the procedures by which a claim is handled and the negative consequences imposed on the perpetrator of a wrongful act differ sharply between criminal law and tort law.(8)

Determining the appropriate response to most acts of violence is an issue of domestic law, falling within the powers of each sovereign State. Particular acts of violence, however, also trigger international concerns. International law prohibits specific violent offenses by state actors, including summary execution and torture.(9) It also bars certain acts of violence, such as genocide, piracy and some violations of the laws of war, even when these acts are committed by private actors.(10) Finally, international law imposes on a State the obligation to take steps to prevent violence.(11) Thus, a State's failure to investigate and punish violent acts committed by otherwise private actors may also violate international law.(12)

As the international community struggles to develop means to enforce these prohibitions, what is the relevance of the tort/crime distinction? In the United States, the Alien Tort Claims Act (ATCA)(13) permits a victim of an international human rights violation to sue in federal court for a "tort" committed "in violation of the law of nations."(14) The statute fuses two otherwise independent concepts: a tort and a violation of international law.(15) Is it proper to classify human rights violations, such as torture, as torts, thereby allowing victims to sue for damages? Does such a process somehow diminish the significance of the violation, interfere with the proper functioning of the criminal law system or violate international law?

The following discussion reviews the distinction between torts and crimes under domestic and international law, as well as the development of international human rights norms applicable to acts of violence. While complete justice for victims of violence ideally includes criminal prosecution as well as a civil tort remedy, the failure to prosecute the crime does not negate the value of a civil judgment. To the contrary, civil remedies are that much more important, given that international criminal prosecutions are virtually nonexistent. Even where criminal prosecutions are undertaken, an international tort remedy may complement such a proceeding, much as in the domestic sphere. Civil lawsuits for international human rights violations thus serve a role similar to tort litigation in a domestic forum: to offer victims of violence a legal remedy which they control and which may satisfy needs not met by the criminal law system.

II. TORTS VS. CRIMES: DOMESTIC LAW

Domestic law has struggled to define the line separating crimes and torts. One approach focuses on the formal characteristics differentiating the processes by which the two classes of injuries or wrongs are handled by the legal system. …