Genocide, Rape, and Crimes against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions

By Isenberg, Beth Ann | Albany Law Review, Spring 1997 | Go to article overview

Genocide, Rape, and Crimes against Humanity: An Affirmation of Individual Accountability in the Former Yugoslavia in the Karadzic Actions


Isenberg, Beth Ann, Albany Law Review


I. INTRODUCTION

The United States has the opportunity to make a positive, definitive, and necessary statement in the realm of fundamental human rights law. After a history of conflict, there is "[o]nce again . . . genocide occurring in Europe. Affirmative steps must be made this time to stop such crimes and to punish those who have committed, planned, encouraged, condoned, or otherwise participated in such atrocities and crimes against Creation."(1) While many would prefer to classify the presently occurring atrocities as "ethnic shifting," rather than genocide or "ethnic cleansing," the press and a number of world agencies have reported that those who refuse to "shift" and many of those willing to relocate or fulfill the requirements of those in power are regardless "cleansed."(2)

The harshness and incredible nature of this intense ethnic hatred and the divisions which persist are even more difficult to comprehend in a geographic region of such cultural diversity. In the former Yugoslavia, "no one culture holds a majority, . . . cross cultural marriages abound, and . . . only an individual's last name serves to identify him or her as a member of a particular minority."(3) Throughout the history of this region, however, ethnic tensions have existed. The categorical distinctions are strict, and the roots of the present ethnic divisions can be traced back more than 600 years to the Battle of Kosovo.(4) The "interlocking struggles" of separate peoples tenuously linked together as one nation state show little sign of ceasing, particularly as the ethnic tensions have manifested in the present civil and international conflict.(5)

The establishment of the Tribunal of Criminal Justice by the United Nations Security Council(6) is reminiscent of the trials at Nuremberg(7) and Tokyo, and recalls the 1947 version of the "new world order" which incorporated a

"return to fundamental [American] principles" of international law.

These principles included applying international law to the goal of

achieving justice defined by morality, recognizing the rights of

individuals under international law, removing the defense of official

state action from the application of international law to the conduct of

individuals, limiting a nation's sovereignty in accordance with the

demands of international law, and making even private citizens

responsible for violations of international law.(8)

After 1947, these principles began to be incorporated into many treaties, publications, and judicial decisions in such a way that they were becoming customary international law.(9)

Tremendous domestic and international concern exists that the perpetrators of some of the worst humanitarian abuses are brought to justice.(10) The United States is currently faced with the question of whether these principles have graduated to a level of customary international law, particularly when considered in light of the recent decision by the United States Court of Appeals for the Second Circuit in Kadic v. Karadzic,(11) which may provide for a civil cause of action against an individual responsible for the atrocities being committed in the former Yugoslavia. The limited scope of this Comment prevents discussion of the many relevant and pertinent tangential aspects implicated in the Karadzic case. Part II focuses on the foundations for a cause of action against an individual for violations of international law, and Part III discusses the decisions of the district court and the Court of Appeals for the Second Circuit. In conclusion, Part IV of this Comment briefly addresses the implications of the Karadzic decisions for the courts of the United States and the resulting position of the United States in foreign relations.

II. PRIVATE DUTIES FROM PRIVATE RIGHTS

The citizens of the United States often take for granted the many privileges and fundamental freedoms that comprise the way of life in the United States. It is critical for all citizens to recognize that with private rights come both duties and responsibilities. In fulfillment of these duties, the world has a responsibility to address the horrendous human rights violations currently occurring in Bosnia. The United States has the ability not only to recognize these duties, but also to provide a forum for claims against individuals for such violations. Both international law and the law of the United States provide for civil remedies in the courts of the United States.(12)

Private duties in international and domestic arenas arise from private rights. "[E]ven before the state, as with the state, there are recognizable rights and duties of humanity--human, civil, and even political rights and duties regardless of the absence or the existence of the modern state and its duties under international law."(13) Private rights and private duties have been incorporated into a growing number of international agreements and instruments,(14) most notably with the creation of the Universal Declaration of Human Rights (Universal Declaration)(15) and the American Declaration of the Rights and Duties of Man (American Declaration).(16) The American Declaration emphasizes the responsibilities of all in the pursuit of liberty: "[t]he fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.'"(17) Article 30 of the Universal Declaration also emphasizes these responsibilities, ties them to private duties, and adds that "[t]he duties implied are duties not to engage in action aimed at the destruction of the human rights of others."(18)

In the Bosnian conflict, the destruction of the human rights of others confronts the world. The world has a responsibility to address the human rights violations occurring in Bosnia. Nearly all of the human rights agreements since World War II embody the recognition of private duties and do not proscribe individual responsibility either expressly or through implication.(19) It is imperative that the world take notice and act to address the gross human rights violations occurring in Bosnia. Such notice and action is essential, especially in light of the fact that "there is simply no requirement in general human rights instruments that human rights infractions be perpetrated at the hands of officials, under 'color of law,' . . . or as a matter of 'official policy.'"(20) Furthermore, at least one scholar has argued that a broader application of both criminal and civil sanctions against private individuals is reasonable and necessary on the international stage.(21)

The courts of the United States provide a potential forum for claims of human rights violations in the Bosnian conflict. The United States has long "recognized that an individual can both sue and be sued in federal courts for conduct in violation of international law."(22) "[N]umerous prosecutions of individuals for violations of international law have occurred throughout our history. Civil or criminal sanctions for private violations of international law were often interchangeable depending on who was seeking enforcement, an individual, the government or both."(23) Furthermore, the United States Supreme Court explicitly affirmed the history of individuals being held accountable for violations of international law in 1942, when it stated that "'[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of . . . individuals.'"(24)

The duty to address the situation in Bosnia is further accentuated by international and domestic law, which allows foreign tort claims to be adjudicated in the courts of the United States. The judicial history of the United States is in accordance with section 404 and comments (a) and (b) of the Third Restatement of the Foreign Relations Law,(25) such that the violations of international law as a concern of the entire global community confer universal jurisdiction so that civil and criminal sanctions attach to individual violators.(26) While universal jurisdiction applies to the violation of jus cogens,(27) the body of international humanitarian law sets out minimum standards for human rights applicable to all parties(28) involved in an armed conflict. As embodied in the Geneva Conventions(29) and Protocols I(30) and II,(31) these minimum standards have become part of customary international law and are, therefore, applicable to all groups in the present Bosnian conflict.(32) Furthermore, the Geneva Conventions,(33) the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),(34) and international court decisions,(35) when viewed in conjunction with the recent recognition by the United States of individual rights and subsequent obligations under international law in Filartiga v. Pena-Irala,(36) provide both the standards and means of holding individuals accountable for violations of international law.(37)

Fairness requires that those who receive the protection of

international law also be subject to the obligations which pertain

under such law, especially obligations to refrain from genocide, other

crimes against humanity and war crimes, as well as the

responsibilities that flow from the commission of such international

delicts.(38)

Thus, the law of the United States and international law, both through agreements(39) and custom, provide the groundwork and standards for the present case facing the judicial system of the United States. The operative questions being not only can the United States hold an individual accountable for the atrocities committed in Bosnia, but also whether the United States should exercise her prestige and power in making a judicial human rights statement to the world in light of the potential foreign relations repercussions.

III. THE KARADZIC ACTIONS

A. The District Court Decision

The Karadzic actions(40) began in 1994 when three plaintiffs brought a class action against Radovan Karadzic, the self-appointed Serbian President.(41) The plaintiffs' action sought compensatory and punitive damages, as well as injunctive relief as a redress for torts including: genocide; summary execution; wrongful death; torture; cruel; inhuman or degrading treatment; rape; assault and battery; war crimes; intentional infliction of emotional distress; forced pregnancy and prostitution; and forced childbirth.(42) These torts are collectively referred to as "ethnic cleansing."(43) The district court, without a hearing, decided to dismiss the causes of action pursuant to Karadzic's defense motions.(44)

The district court erred in dismissing the action. In Filartiga v. Pena-Irala,(45) the United States Court of Appeals for the Second Circuit found that an "international common law tort" involves conduct that violates "universally accepted standards of human rights [and] is within the law of nations, and thus within the subject matter jurisdiction of the [Alien Tort Claims] Act."(46) The district court opinion, however, is replete with arguments not to hear this particular case. Pursuant to defendant's motion to dismiss, the district court initially considered the possibility of the decision becoming an advisory opinion.(47) The court stated that, while not dispositive of the matter, the facts "militate[d] against jurisdiction"(48) because the executive branch of Serbia may recognize and grant Karadzic head-of-state immunity.(49) In addition, when the court considered jurisdiction under the Alien Tort Claims Act (Alien Tort Act),(50) it held that there was no jurisdiction under the Alien Tort Act because Karadzic was not a state actor, but rather a private individual.(51) Furthermore, when considering the Torture Victims Protection Act of 1991 (TVPA),(52) the court held that there must be some state action or government involvement because the Committee Report of the House of Representatives of the United States specifically stated that the TVPA was not to reach purely private groups.(53) The court found that Karadzic was a purely private actor performing in a private capacity, and the acts attributed to him were not carried out in an official capacity.(54) After failing to find subject matter jurisdiction under the Alien Tort Act, the TVPA, or the general federal-question jurisdictional statute,(55) and failing to find any implied cause of action under international law, the district court dismissed the case.(56)

B. The Second Circuit Decision

On June 20, 1995, the Karadzic appeal was argued before the United States Court of Appeals for the Second Circuit.(57) On appeal, the plaintiffs sought to build upon the Filartiga decision, and raised additional issues

as to the scope of the Alien Tort Act: whether some violations of the

law of nations may be remedied when committed by those not acting

under the authority of a state; if so, whether genocide, war crimes,

and crimes against humanity are among the violations that do not

require state action; and whether a person, otherwise liable for a

violation of the law of nations, is immune from service of process

because he is present in the United States as an invitee of the United

Nation.(58)

In complete contrast to the decision by the district court,(59) the Second Circuit held that not only was there subject matter jurisdiction,(60) but also that Karadzic was not immune from service of process.(61) The court, therefore, held that Karadzic may be found liable and held accountable for genocide, war crimes, and crimes against humanity as an individual private actor and for other violations as a state actor.(62)

1. Alien Tort Claims Act

The court began with an analysis of the Alien Tort Act.(63) After finding that the plaintiffs had clearly established the first two elements of the Act set out in Filartiga,(64) the only remaining question was whether the plaintiffs' cause of action was based upon violations of international law, the law of nations.(65) In answering this critical question, the court noted that "Filartiga established that courts ascertaining the content of the law of nations 'must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.'"(66)

The defendant claimed that as he was a private individual, the plaintiffs had not alleged any violation of international law given that the norms of international law bind only states and those acting under the color of a state's law.(67) In assessing the validity of this claim and the dismissal by the district court, the Second Circuit noted that the district judge failed to consider "the substantial body of law . . . that renders private individuals liable for some international law violations."(68) The district judge concluded under the auspices of the decision in Tel-Oren v. Libyan Arab Republic(69) that the violation of torture did not require state-action.(70) The Second Circuit, however, found that the TVPA codified the cause of action recognized in Filartiga and extended that cause of action to the citizens of the United States.(71) Therefore, the scope of the Alien Tort Act was not diminished with the creation of the TVPA.(72) This is particularly important to note given that while state action was relied upon in Filartiga in finding the defendant liable, the question as to whether an individual could be held liable remained unaddressed.(73)

In the analysis of the instant case, the court divided the claims of the plaintiff-appellants into three categories: "(a) genocide, (b) war crimes, and (c) other instances of inflicting death, torture, and degrading treatment."(74) The court first recognized that in the post World War II era, the prohibition against genocide quickly became a jus cogen.(75) Acts of genocide violate the four Geneva Conventions(76) and the Genocide Convention,(77) which "provides a more specific articulation of the prohibition of genocide in international law."(78) In analyzing article IV of the Genocide Convention, the court noted that the Convention clearly states that "'[p]ersons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."(79)

As the prohibitions against genocide are equally applicable to state and non-state actors, the allegations of Karadzic's personal responsibility for planning and ordering "a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Boanian Croats clearly state a violation of the international law norm proscribing genocide."(80) Hence, the Second Circuit held that there was subject matter jurisdiction in this action pursuant to the Alien Tort Act.(81)

The court next considered the second classification of atrocities, war crimes. In so doing, the court emphasized the potential liability of Karadzic as a military commander.(82) According to the court, "international law imposes an affirmative duty on military commanders to take appropriate measures within their power to control troops under their command for the prevention of such atrocities."(83) Therefore, the alleged atrocities, if proven, would violate Common Article 3 of the Geneva Conventions, one of the most fundamental laws of war, which attaches to "parties to internal conflicts regardless of whether they are recognized nations or roving hordes of insurgents."(84) Thus, the court found a second basis for jurisdiction under the Alien Tort Act for war crimes and other violations of international law.(85)

The third category of analysis under the Alien Tort Act included torture and summary execution. First, the court noted that the alleged violations were prohibited under both the Filartiga analysis of the Alien Tort Act and the TVPA.(86) However, the court held that "torture and summary execution--when not perpetrated in the course of genocide or war crimes-are proscribed by international law only when committed by state officials or under color of law."(87)

Thus, while many of the alleged violations are included under the two previous classifications of genocide and war crimes,(88) it is uncertain at this stage whether the plaintiffs will be able to establish the intent required for genocide or that the alleged violations were committed during an armed conflict required for war crimes. Nevertheless, the court held that the alleged atrocities were actionable under the Alien Tort Act, "without regard to state action, to the extent that they were committed in pursuit of genocide or war crimes, and otherwise may be pursued against Karadzic to the extent that he is shown to be a state actor."(89)

2. State Action

Karadzic persuaded the district court that he was not a state actor and, therefore, the action did not fall within the jurisdiction of the court.(90) The circuit court addressed this question explicitly as it is likely to arise again on remand in the district court, where the plaintiffs will attempt to prove that the "Bosnian-Serb entity" over which Karadzic presides meets the definition of a state.(91)

According to the Third Restatement of Foreign Relations section 201, "a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities."(92) The state need not be recognized as such by other states.(93) The international community recognized Bosnia as an independent state on April 6, 1992.(94) Almost immediately after this recognition, the internal conflict escalated into a full scale war.(95) Karadzic instantly announced a "'Serbian Republic of Bosnia-Hercegovina' [i.e., Srpska] independent of Bosnia, declared himself president, and claimed two-thirds of Bosnia's territory on behalf of the new 'Republic.'"(96)

On the basis of these definitions and actions, the circuit court determined that the plaintiffs would have the opportunity to prove that Karadzic was a state actor as President of Srpska, or as a state actor behaving in concert with Yugoslavian officials, receiving Yugoslavian aid, or acting under color of Yugoslavian law.(97) The court reasoned that "[t]he inquiry, after all, is whether a person purporting to wield official power has exceeded internationally recognized standards of civilized conduct, not whether statehood in all its formal aspects exists."(98)

3. Torture Victims Protection Act

In 1992, Congress enacted the TVPA which provides a cause of action for torture and extrajudicial killing.(99) Article I of the United States Constitution grants Congress the power to "define and punish . . . [o]ffences against the [l]aw of [n]ations."(100) Thus, "[t]he law of nations . . . became a part of the [federal] common law of the United States upon the adoption of the Constitution."(101) Article III grants the Judicial Branch the power to hear cases arising under the law of the United States.(102) In practice, many decisions have applied "rules of international law uncodified in any act of Congress," such that Congress does not have to act in order to define the law of nations before a court of the United States may find a violation.(103)

The TVPA allows a cause of action against an individual for torture and extrajudicial killing if the individual acted "under actual or apparent authority, or color of law, of any foreign nation."(104) The legislative history indicates that through this language, Congress intended to ensure at least some state involvement. As the Second Circuit noted, Congress chose the specific language of the TVPA to a "`make[] clear that the plaintiff must establish some governmental involvement in the torture or killing to prove a claim,' and that the statute `does not attempt to deal with torture or killing by purely private groups.'"(105) However, Congress has also made it explicitly clear that the TVPA does not apply to nation states.(106)

The TVPA is an important step in the protection of fundamental human rights. "By providing a forum for those who have not enjoyed the basic liberties to which most citizens of free countries have become accustomed, the TVPA strengthens the foundation upon which the system that allows enjoyment of those rights rests."(107) As the TVPA authorizes suits against individuals, "courts may not decline to adjudicate TVPA claims on the basis of the act of state or political question doctrines," sovereign immunity will not apply, and "forum non conveniens will seldom justify dismissal or transfer of a TVPA action."(108) Accordingly, the enactment of the TVPA "sends a strong message to the judiciary that it must overcome any hesitancy . . . in dealing with these issues."(109)

Although the TVPA provides a cause of action for official torture, it is not, in and of itself, a jurisdictional statute.(110) Therefore, claims under this Act must be supported by jurisdiction conferred by the Alien Tort Act or by general jurisdiction conferred by the federal question doctrine set forth in 28 U.S.C. [section] 1331.(111) As the circuit court allowed jurisdiction, the plaintiffs have a cause of action under this statute for torture, if they are able to prove that Karadzic acted under color of state law.(112)

4. Jurisdiction Under the Federal Question Doctrine

While briefly addressing the federal question doctrine, the Second Circuit left open the question of jurisdiction under 28 U.S.C. [section] 1331. The court noted that "[t]he law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations."(113) Several district courts have upheld jurisdiction under [section] 1331 for violations of international law.(114) In reasoning that the causes of action arose under the law of the United States, the decisions have relied upon the incorporation of international law into treaties and federal common law as a basis for jurisdiction.(115) In the case at bar, as in Filartiga, the circuit court held that the Alien Tort Act conferred jurisdiction and, therefore, the court chose not to decide the applicability of [section] 1331 to the present case.(116)

5. Personal Jurisdiction

Karadzic put forth in this matter that the plaintiffs improperly served him with process, and thus the court lacked personal jurisdiction over (117) The appellants, however, argued that they properly served Karadzic with "tag" service while he was present in the Southern District of New York pursuant to the standard set up in Burnham v. Superior Court.(118) In response, Karadzic argued that under federal common law and as an invitee of the United Nations, he was immune from service of process.(119) The court rejected both of the asserted bases of immunity.(120)

While the Headquarters Agreement provides for immunity from suit,(121) it does not afford Karadzic protection in the present action.(122) The court reached this conclusion because the plaintiffs served process upon Karadzic outside of the "well-defined confines" of the "headquarters district."(123) Furthermore, as Karadzic is not a representative of a member nation of the United Nations, he is therefore not "entitled to the same privileges and immunities as the United States extends to accredited diplomatic envoys."(124) The United States Department of State also concurred that Karadzic is not immune from service and stated that "`Mr. Karadzic's status during his recent visits to the United States has been solely as an 'invitee' of the United Nations, and as such he enjoys no immunity from the jurisdiction of the courts of the United States.'"(125) In concurrence with this position, the counsel for the United Nations put forth in an opinion that "invitees are not immune from legal process while in the United States at locations outside of the Headquarters District."(126) Therefore, based on this evidence, the Second Circuit held that Karadzic was not immune from service of process merely because he was allegedly an invitee of the United Nations.(127)

With regard to the question of federal common law immunity, the court declined to create a new provision of immunity particularly after the treaty with the United Nations explicitly addressed such immunity.(128) Furthermore, the court stated in response to potential future head-of-state immunity, that "it would be entirely inappropriate for a court to create the functional equivalent of such an immunity based on speculation about what the Executive Branch might do in the future."(129) Thus, the court found that Karadzic was not immune from service of process and turned next to the consideration of justiciability.(130)

6. Justiciability

"Filartiga . . . [does not] mean that the federal judiciary must always act in ways that risk significant interference with United States foreign relations."(131)Therefore, there are a number of other considerations that might militate against the court hearing the present case even though a basis of jurisdiction has been established.(132) However,

[n]ot every case "touching foreign relations" is non-justiciable, . . .

and judges should not reflexively invoke these doctrines to avoid

difficult and somewhat sensitive decisions in the context of human

rights. We believe a preferable approach is to weigh carefully the

relevant considerations on a case-by-case basis. This will permit the

judiciary to act where appropriate in light of the express legislative

mandate of the Congress in section 1350, without compromising the

primacy of the political branches in foreign affairs.(133)

There are many hurdles to overcome in pursuit of a cause of action in the courts of the United States: subject matter jurisdiction, personal jurisdiction, service of process, forum non conveniens, failure to state a claim, standing, diplomatic or foreign sovereign immunity, nonjusticiability under the act of state or political question doctrines, discovery, attachment of assets, and enforcement of judgments.(134) After analyzing the relative factors, the court determined that this case was justiciable in light of the act of state doctrine, the political question doctrine, and forum non conveniens.(135)

The act of state doctrine, which usually prohibits scrutiny of the acts of a foreign state within its own territory,(136) is inapplicable as Karadzic did not raise the issue in the district court. However, even if the district court had considered the doctrine, the circuit court stated that "we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state."(137) Thus, "the act of state doctrine should not, as a general rule, come into play in TVPA cases."(138)

Searching for guidance, the court looked to the Act's legislative history. Specifically, the court examined a report by the United State Senate, which dealt with the issue of forum non conveniens and found that if suit is brought in the United States, the courts should assume that the place where the tort occurred does not provide a remedy.(139) In particular, the court noted that neither party had identified a more appropriate forum for jurisdiction and that there was no available court in the former Yugoslavia that could entertain the claims of the plaintiffs at the present time.(140)

While the United States provides one of the only forums for the plaintiffs at the present time, the Second Circuit was forced to consider the foreign relations implications under the political question doctrine. In its opinion, the court insisted that although the case arose in a political context, that did not transform the case into one of a nonjusticiable political question.(141) The court determined that, under the first three factors of Baker v. Carr, (142) the judiciary was the appropriate forum for this case.(143) In consideration of the fourth through sixth factors in this analysis, the court looked to responses from the Secretary of the Department of State and the Attorney General of the Department of Justice, and determined that the factors did not provide a basis of nonjusticiability.(144) Instead of urging the court not to hear plaintiffs' claims, "the Department [of State] responded with a letter indicating that Karadzic was not immune from suit as an invitee of the United Nations.(145) More importantly, however, was the consideration of the letter signed by the Solicitor General, which not only supported the present action, but also stated that "'[a]lthough there might be instances in which federal courts are asked to issue rulings under the Alien Tort Statute or the Torture Victim Protection Act that might raise a political question, this is not one of them.'"(146) These statements, when viewed in conjunction with the legislative history of the TVPA and the explicit statement of Congress by enacting the TVPA, are enough to overcome any potential problem with regard to the political question doctrine.(147)

IV. CONCLUSION

The Supreme Court denied certiorari and allowed the plaintiffs to proceed with their present case.(148) The Court, however, may soon be faced with deciding whether to allow future actions that pose questions similar to the Karadzic actions. Regardless of the direction taken by the Supreme Court, there will be consequences for the United States, domestically and in the foreign relations arena. A refusal by the Court to allow such claims may have grave implications for the United States internationally. The United States might even find itself

in the unenviable position of a violator of international law, since a

federal denial of a judicial remedy in the United States for relevant

human rights violations would necessarily clash with the affirmative

obligation to guarantee an "effective remedy" in competent national

tribunals that is expressly set forth in Article 8 of the Universal

Declaration (of Human Rights), which . . . is itself a significant

indicia of the human right obligations of

the United States under the United Nations Charter.(149)

Further complicating the potential bind the United States may find herself in is the fact that the enactment of the TVPA was in fulfillment of her obligations under the Convention Against Tortune.(150) Thus, the Supreme Court has a tremendous incentive to allow such claims under the jurisdiction of the courts of the United States because "[t]he right of access to the courts and the concomitant right to an effective remedy are . . . recognized as fundamental human rights having a basis in customary international law."(151)

The statement of the Executive Branch in the Karadzic action allowing this suit to proceed is additionally supported by the Memorandum for the United States in Filartiga.(152) By refusing to recognize a cause of action for private individuals, the credibility of the commitment of the United States to human rights protections will be damaged, especially where available standards make private enforcement "entirely appropriate."(153) In light of the human rights instruments that comprise customary international law and the statements by the Executive Branch, it is permissible and arguably incumbent upon the courts to allow jurisdiction and relief to those who bring adequate causes of action pursuant to the Alien Tort Act.

The restrictions built into the Alien Tort Act mitigate potential violations of foreign sovereignty.(154) The causes of action permissible under the Alien Tort Act are non-intrusive to foreign sovereignty and will not be implicated under the TVPA if there is an effective remedy available in the country where the injury occurred.(155) Additionally, the actions provided for in the Alien Tort Act are in the interest of all citizens. Any infringement of sovereignty that does occur from such judicial exercise is reasonable and authorized by universal jurisdiction for violations of preemptory norms, customary international law and human rights instruments.(156) Providing a forum for the Karadic actions and other similar actions, and doing so in a timely manner? is of great importance as evidence and credible authority over those accused of these atrocities may otherwise be lost.(157)

There are potential negative consequences from allowing suits in this area. Among those raised is the argument that allowing such claims will open the doors of our already over stuffed courthouses to a "floodgate" of litigation.(158) However, the number of hurdles that must be overcome by a prospective plaintiff are so numerous and demanding that it will be the rare case that rises to a sufficient level to be heard. Additionally, with the creation of an International Criminal Court and the suggested inclusion of civil remedies under this tribunal's power, there may soon be an alternative and arguably more appropriate forum for such claims to be entertained.(159)

At the present time and under the present circumstances, providing a forum for such claims to be adjudicated is consistent with the pursuance and protection of some of the most fundamental of liberties.(160) The position of the United States, relative to the rest of the world, is such that it currently has the prestige to influence the development and protection of essential human rights in a nonmilitary manner. While American detachment from such calculated and large scale atrocities may result in both a lack of understanding and interest in the plight of those living in the former Yugoslavia, the fundamental nature of the rights being violated necessitates a definitive statement that such behavior is contrary to the laws of nations and Creation.

(1) Jordan J. Paust, Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AM. U. J. INT'L L. & POL'Y 499, 522-23 (1994).

(2) See, e.g., Elizabeth L. Pearl, Note, Punishing Balkan War Criminals: Could the End of Yugoslavia Provide an End to Victor's Justice, 30 AM. CRIM. L. REV. 1373, 1375 & n.4 (1993) (citing reports that discuss the atrocities in the former Yugoslavia).

(3) David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L.J. 203, 215 (1994) (citations omitted).

(4) See id. at 216 (describing the ethic tensions that existed after the Battle of Kosovo).

(5) Pearl, supra note 2, at 1378, 1383 (outlining the ethnic tensions and the underlying reasons for these tensions).

(6) See Kathleen M. Pratt & Laurel E. Fletcher, Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia, 9 BERKELEY WOMEN'S L.J. 77, 88 (1994) (discussing the establishment of the Tribunal of Criminal Justice on May 25, 1993 for the purpose of punishing those involved in grave abuses and the implicit authorization for prosecution of rape and other gender specific violations in articles two through five of the statute enacted by the Security Council).

(7) See Pearl, supra note 2, at 1409-10 (discussing the Nuremberg trials). At Nuremberg, the International Military Tribunal removed immunity for state actors and stated the following: "'[t]he principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment.'" Amicus Brief for Appellant at 20, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (No. 94-9060), cert. denied, 116 S. Ct. 2524 (1996) [hereinafter Amicus Brief] (quoting 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 218 (1947), reprinted in 41 AM. J. INT'L L. 172, 221 (1947)).

(8) Pearl, supra note 2, at 1410 (alteration in original) (footnote omitted) (quoting Steven Fogelson, Note, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL. L. REV. 833, 867 (1990)).

(9) See id. (discussing the incorporation of American principles into international documents); see also Michele Brandt, Comment, Doe v. Karadzic: Redressing Non-State Acts of Gender-Specific Abuse Under the Alien Tort Statute, 79 MINN. L. REV. 1413, 1433-34 (1995) (discussing the codification of individual liability for violations of international law in many instruments).

(10) See Pearl, supra note 2, at 1400 (stating that "for the first time [the United Nations] possesses not only the prestige and the aura of moral superiority, but also the sheer willpower, necessary to bring to justice those who have committed" the most horrifying humanitarian crimes).

(11) 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).

(12) See infra notes 19-38 and accompanying text (discussing the laws that provide the basis for civil remedies in the courts of the United States).

(13) Jordan J. Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 HARV. HUM. RTS. J. 51, 63 (1992). In 1793, Justice Wilson recognized such rights and duties:

"When men have formed themselves into a political society, . . .

they cannot, by this union, discharge themselves from any duties which they

previously owed to those who form a part of the political association. Under

all the obligations due to the universal society of the human race, the

citizens of the state still continue.... On states as well as individuals

the duties of humanity are strictly incumbent."

Id. at 62 (quoting Henfield's Case, 11 F.Cas. 1099, 1107 (C.C.D. Pa. 1793) (No. 6360)).

(14) See id. at 54. Many human rights instruments recognize the duties and obligations of private citizens and do not explicitly necessitate state action. See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 48th Sess., Supp. No. 16, at 62, U.N. Doc. A/6316 (1967) (prohibiting a person from destroying the rights of another to be free from discrimination based on race, sex, or politics); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 48th Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1967) (prohibiting a person from destroying the economic, social, or cultural rights of another person); European Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, Euop. T.S. No. 5,213 U.N.T.S. 221 (prohibiting a person from destroying freedoms such as the freedoms of thought and expression).

(15) Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 27th Sess., Supp. No. 49, at 71, U.N. Doc. A/810 (1948).

(16) American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, International Conference of American States, 9th Conf., O.A.S. Doc. OEA/Ser. L/V/I.4 Rev. XX (1948).

(17) Paust, supra note 13, at 54 (quoting the American Declaration of the Rights and Duties of Man, supra note 16, at preamble).

(18) Paust, supra note 13, at 54 (discussing the provisions of the Universal Declaration). At a base line minimum, international laws prohibit individuals from violating the human rights of others. See id. at 55.

(19) See id at 62 (discussing the incorporation of private duties and private rights into international documents); supra notes 9, 14-16 and accompanying text (discussing the development of international documents after World War II).

(20) Paust, supra note 1, at 519.

(21) See id at 519-20. This is particularly so as "[t]he growing panoply of treaties recognizing individual criminal responsibility for human rights violations affirms that individual duties exist with respect to human rights and, indeed, that the most serious forms of sanctions can attach to private violations of international law." Paust, supra note 13, at 56; see Brandt, supra note 9, at 1433 (discussing individual liability for violations of international law).

(22) Jordan J. Paust, On Human Rights: The Use of Human Right Precepts in U.S. History and the Right to an Effective Remedy in Domestic Courts, 10 MICH. J. INT'L L. 543, 620 (1989).

(23) Amicus Brief, supra note 7, at 6 (discussing the causes of action brought in the courts of the United States against individuals for violations of international law, including piracy, territorial infractions, acts of hostility or breaches of neutrality, assaults on foreign government personnel, terroristic publications, unlawful captures, counterfeiting of foreign currency, misuse of passports, the laws of war, and slave trade); see also Paust, supra note 22, at 624-45 (criticizing judicial opinions in which private litigants were penalized for violations of international law).

(24) Paust, supra note 22, at 625 (quoting Ex parte Quirin, 317 U.S. 1, 27-28 (1942)).

(25) See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 404 & cmts. a, b (1986). Universal jurisdiction has generally been applied in areas of criminality; however, remedies for torts are permissible. See Rachael E. Schwartz, "And Tomorrow?" The Torture Victim Protection Act, 11 ARIZ. J. INT'L & COMP. L. 271, 285 (1994) (discussing universal jurisdiction).

(26) See Amicus Brief, supra note 7, at 19. It is important to consider this in light of the decision in Amerada Hess Shipping Corporation v. Argentine Republic, 880 F.2d 421, 425 (2d Cir. 1987), rev'd on other grounds, 488 U.S. 428 (1989), which held that "[t]he modern view . . . [under international law] is that sovereigns are not immune from suit for their violation of international law." Amicus Brief, supra note 7, at 20.

(27) There is some disagreement concerning how a norm becomes a jus cogent See Schwartz, supra note 25, at 289. A jus cogen is established by looking at the "'general and consistent practice'" which nation states follow because of a "'sense of legal obligation.'" Id.

(28) The term "parties" in this context refers to any state, group, or person. Under article 30 of the Universal Declaration, there is neither an express nor an implied statement that can be interpreted to allow a state, group, or individual "to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth" therein. Universal Declaration of Human Rights, supra note 15, at art. 30.

(29) Geneva Conventions of 12 August 1949 for the Protection of War Victims, Aug. 12, 1949, 6 U.T.S. 3114, 75 U.N.T.S. 3 [hereinafter Geneva Conventions]. The Geneva Conventions are comprised of the following documents: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I] (commanding all party nations to humanely treat and care for wounded and sick soldiers); Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II] (prohibiting all party nations from subjecting shipwrecked soldiers to violence); Convention Relative the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III] (prohibiting all party nations from endangering the health of prisoners of war); Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV] (requiring all party nations to respect and protect civilians). Common Article 3 of the Geneva Conventions "applies . . . to those who are parties to a conflict but who lack the status of state actors or those acting under 'color' of the state." Paust, supra note 13, at 58-59; see Brandt, supra note 9, at 1430-32 (reviewing the provisions of Common Article 3).

(30) Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, U.N. Doc. A/32/144 Annex 1, reprinted in 16 I.L.M. 1391 (1977) (supplementing the protections of war victims under the Geneva Conventions).

(31) Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Noninternational Armed Conflicts, U.N. Doc. A/32/144 Annex II, reprinted in 16 I.L.M. 1442 (1977) (supplementing the war victim protections provided for in Common Article 3).

(32) See Pratt & Fletcher, supra note 6, at 91-93 (discussing the incorporation of the Geneva Conventions and Protocols I and II into international law).

(33) See Geneva Conventions, supra note 29, at art. 3 (setting forth minimum standards of conduct toward individuals).

(34) Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. IV, 78 U.N.T.S. 277 (entered into force for the United States on Feb. 23, 1989) [hereinafter Genocide Convention]. The Genocide Convention explicitly provides for a private cause of action: "Persons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." Id.; see Paust, supra note 13, at 57 (discussing article four of the Genocide Convention).

(35) See Paust, supra note 13, at 56 n.30 (citing Velasquez Rodriguez Case, Inter-Am. C.H.R. 35, OEA/ser./L/V/III. 19, doe. 13, app. VI (1988), for the proposition that there is a legal duty upon a state to punish individuals who violate international law and to ensure sufficient compensation to the victim).

(36) 630 F.2d 876 (2d.Cir. 1980).

(37) This is particularly so when considered along with the history of cases that hold individuals accountable for violations of international law in the courts of the United States. See supra note 23 and accompanying text (listing the various causes of action under which a court of the United States has held an individual liable for violations of international law).

(38) Amicus Brief, supra note 7, at 28.

(39) No treaty gives a person or a state criminal or civil immunity for violations of international law. Additionally, these international agreements must be considered in light of the universal obligations under the auspices of article 55(c) and article 56 of the Charter of the United Nations. See U.N. CHARTER arts. 55(c), 56. Article 55(c) and article 56 are relevant to the "fundamental human rights of all persons to an effective remedy in domestic tribunals." Amicus Brief, supra note 7, at 23.

(40) In the Karadzic actions, the district court decided two actions, Doe v. Karadzic and Kadic v. Karadzic. See 866 F. Supp. 734-35 (S.D.N.Y. 1994), rev'd 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996). This Comment will refer to the two actions jointly as Karadzic or the Karadzic actions.

(41) See id. at 735.

(42) See id. at 735-37. The specific facts of the Karadzic actions are as follows:

K approached the entrance to her home and was accosted by four Serbian soldiers, known as "chetniks." One told her that he had come "to take one of your children so that you remember well what we chetniks know how to do." Plaintiff K's Complaint at 7, Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994) (No. 93-Civ-1163). The soldiers attempted to forcibly remove K's son from her arms. She resisted. She heard her son scream and looked down to see his head resting on the floor in a puddle of blood. Id. When she regained consciousness she located her living son and fled the city. Id. [Bosnian-Serb soldiers captured K later and sent her to a detention camp where she was raped ten times daily for twenty-one days.]

The camp functioned as a "rape/death camp for women and a camp for reproducing 'Serbian' babies through forced impregnation." Id. Serbian soldiers raped all the women and girls, some as young as three or four years old, on beds with bloody sheets. The soldiers often forced brothers and husbands to watch the rapes. Id. The raping room resembled a movie theatre; it was dark, and the bed was lit with a solitary spot light. Id. During the rapes, Serbian soldiers insulted K regarding her Croat and Muslim ancestry.

[On May 31, 1992, teenager Jane Doe I was raped by eight Bosnian-Serb soldiers while she was imprisoned in a Bosnian-Serb concentration camp.] Jane Doe I was standing in line with a group of 15 women waiting to obtain water rations when the Bosnian-Serb soldiers approached. They separated out Jane Doe I and six of the younger women from the group and led them to a house in an adjacent field. Id. at 5-6. The women were forced to undress and walk in a circle while the soldiers screamed obscenities at them. After approximately 15 minutes, the soldiers began to rape the women. Jane Doe I attempted to resist and she was beaten and forcibly held down. She fainted. Another soldier was raping her when she regained consciousness. Id. at 6. Jane Doe I was returned to camp after a Bosnian-Serb whom she had known previously intervened on her behalf. The other young women remained behind; two never returned. Id. at 6.

[On June 28, 1992 soldiers beat Jane Doe II as she watched her mother being raped by Bosnian-Serb soldiers.] After the soldiers raped Jane Doe II's mother, they took her mother down the hallway and the children heard their mother scream. The soldiers returned with a bloody knife and threatened to rape Jane Doe II. Her brother thwarted the attack, and Jane Doe II escaped by hiding under a balcony. Id. at 6. Brandt, supra note 9, at 1413 & nn.1-4.

(43) Karadzic, 866 F. Supp. at 736-37.

(44) Karadzic moved to dismiss the actions for lack of subject matter jurisdiction, lack of personal jurisdiction, invalid service of process, and nonjusticiability, pursuant to Federal Rule of Civil Procedure 12(b)(1), (2), (4), (5), and (6). See id. at 736.

(45) 630 F.2d 876 (2d Cir. 1980).

(46) Karadzic, 866 F. Supp. at 739 & n.8 (interpreting the Filartiga decision and recognizing a wide range of international common law torts actionable under the Alien Tort Act). The district court cites to Filartiga, which held official torture actionable under the Alien Tort Act and defined torture as "'any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official.'" Id at 739 (quoting Filartiga, 630 F.2d at 882).

(47) See id. at 736-37.

(48) Id. at 737.

(49) See id.; Lafontant v. Aristide, 844 F. Supp. 128, 130 (E.D.N.Y.1994) (discussing head-of-state immunity).

(50) 28 U.S.C. [section] 1350 (1994).

(51) See Karadzic, 866 F. Supp. at 741. There was some controversy as to whether Karadzic was a public or private actor. Both parties in this action referred to Karadzic as the President and head of Srpska, the Republic of Serbia, and at the same time as a private individual, not an official of any government. See Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).

(52) Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 93 (1992) (codified at 28 U.S.C. [section] 1350 note (1994)). The TVPA states:

Section 1. Short Title.

This Act may be cited as the "Torture Victim Protection Act of 1991."

Section 2. Establishment of civil action.

(a) Liability.--An individual who, under actual or apparent authority,

or color of law, of any foreign nation--

(1) subjects an individual to torture shall, in a civil action, be

liable for damages to that individual or

(2) subjects an individual to extrajudicial killing shall, in a civil

action, be liable for damages to the individual's legal representative, or

to any person who may be a claimant in an action for wrongful death.

(b) Exhaustion of remedies.--A court shall decline to hear a claim under

this section if the claimant has not exhausted adequate and available

remedies in the place in which the conduct giving rise to the claim occurred.

(c) Statute of limitations.--No action shall be maintained under this

section unless it is commenced within 10 years after the cause of action

arose.

Section 3. Definitions.

(a) Extrajudicial killing.--For purposes of this Act, the term

"extrajudicial killing" means a deliberated killing not authorized by a

previous judgment pronounced by a regularly constituted court affording all

the judicial guarantees which are recognized as indispensable by civilized

peoples. Such term, however, does not include any such

killing that, under international law, is lawfully carried out under the

authority of a foreign nation.

(b) Torture.--For purposes of this Act--

(1) the term "torture" means any act, directed against an individual in

the offender's custody or physical control, by which severe pain or suffering

(other than pain or suffering arising only from or inherent in, or incidental

to, lawful sanctions), whether physical or mental, is intentionally inflicted

on that individual for such purposes as obtaining from that individual or a

third person information or a confession, punishing

that individual for an act that individual or a third person has committed

or is suspected of having committed, intimidating or coercing that individual

or a third person, or for any reason based on discrimination of any kind; and

(2) mental pain or suffering refers to prolonged mental harm caused by

or resulting from--

(A) the intentional infliction or threatened infliction of severe

physical pain or suffering;

(B) the administration or application, or threatened administration or

application, of mind altering substances or other procedures calculated to

disrupt profoundly the senses of the personality;

(C) the threat of imminent death; or

(D) the threat that another individual will imminently be subjected to

death, severe physical pain or suffering, or the administration or

application of mind altering substances or other procedures calculated to

disrupt profoundly the senses or personality.

Id.

(53) See Karadzic, 866 F. Supp. at 742; H.R. REP No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86 [hereinafter HOUSE REPORT 367].

(54) See id. at 74243.

(55) 28 U.S.C. [section] 1331 (1994).

(56) Karadzic, 866 F. Supp. at 744. The court in its analysis of customary international law referred to the decision in Tel-Oren v. Libyan Arab Republic, 726 F.2d 744 (D.C. Cir. 1984), which said that the general jurisdiction statute suggests that the plaintiff must identify a remedy granted by the law of nations or argue successfully for one to be implied. See id. at 746. The Karadzic court declined to find an implied cause of action at international law especially in light of the TVPA and Alien Tort Act. See Karadzic, 866 F. Supp. a

(57) See Kadic v. Karadzic 70 F.3d 232,232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).

(58) Id. at 236.

(59) The amici curiae for the plaintiff-appellants posited that:

The District Court opinion tends to serve the evil that international

law, and the creation of an International Criminal Tribunal for the Former

Yugoslavia, seek to proscribe and to provide criminal and civil sanctions

against such an opinion threatens not merely the law, but also humankind

and the ability of the United States to live up to its obligations under

international law.

Amicus Brief, supra note 7, at 31. The brief also listed and discussed seven reasons why the district court erred: private individuals can be violators of international law; private perpetrators can be sanctioned under the Alien Tort Act; rights of action and rights to a remedy exist for the plaintiff-appellants under international law and the general jurisdiction statute and, therefore, there is subject matter jurisdiction; the district court violated the separation of powers doctrine by intruding on the domain of the executive branch in the recognition or nonrecognition of a foreign state and its officials; head-of-state immunity is inapplicable; there is no viable immunity under international law that the defendant Karadzic can invoke as a defense to the plaintiffs' claims; and finally that the TVPA not only applies, but provides a basis for jurisdiction and relief. See id. at 5-6.

(60) See Karadzic 70 F.3d at 236.

(61) See id.

(62) See id. at 239-46

(63) 28 U.S.C. [section] 1350 (1994).

(64) According to Filartiga, a district court has subject matter jurisdiction when three requirements are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations. See Filartiga, 630 F.2d at 878; Karadzic, 70 F.3d at 238

(65) See karadzic, 70 F.3d at 238.

(66) Id. (quoting Filartiga, 630 F.2d at 881). The court, in quoting United States v. Smith, 18 U.S. (1 Wheat.) 153, 160-61 (1820), noted that norms of modern international law are found by reference to the general usage and practice of nations, judicial decisions, and the works of scholars and jurists. See Karadzic, 70 F.3d at 238.

(67) See Karadzic, 70 F.3d at 239.

(68) Id. Additionally, the Second Circuit noted that the Executive Branch in this action "emphatically restated . . . its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law." Id. at 239-40. The court quoted the Third Restatement of the Foreign Relations which states that'" [i]ndividuals may be held liable for offenses against international law, such as piracy, war crimes, and genocide.'" Id. at 240 (quoting RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES pt. II, introductory note (1986)). Furthermore, the court noted universal concerns under Restatement section 702, and looked to jurisdiction authorized by Restatement section 404 which is also applicable to non-state actors. See id. Even though these concerns are generally applied in criminal law cases, international law does not prohibit nation states from establishing civil remedies. See id. (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 404 cmt. b 11986)) Schwartz, supra note 25, at 285-87 (discussing the enactment of the TVPA as part of the United States' fulfillment of obligations under the Convention Against Torture ratified of October 27, 1990, which allows states to provide a civil cause of action under article 14 of the Convention); supra notes 13-39 and accompanying text (arguing that an individual's duty not to violate international law derives from international treaties that criminalize individual actions); see generally Brandt, supra note 9, at 1433-34 (providing an overview of individual liability when an individual violates international law).

(69) 726 F.2d 774 (D.C. Cir. 1984).

(70) See Karadzic, 70 F.3d at 239.

(71) See id. at 241.

(72) See id In fact, the Report of the House of Representatives explained that the codification of the rules set out in Filartiga was necessary because of the skepticism of Judge Bork's opinion in Tel-Oren. See HOUSE REPORT 367, supra note 53, at 4. One scholar has argued that Judge Bork's interpretation of the Alien Tort Claims Act froze the interpretation of international law at its 1789 meaning. See Schwartz, supra note 26, at 280. Judge Bork's interpretation of the Alien Tort Act and its inapplicability would defeat the congressional intent to provide aliens with a federal forum for such claims. See id. at 279-81; HOUSE REPORT 367, supra note 53, at 4.

Congress indicated that the Alien Tort Act "has other important uses and

should not be replaced," because

Claims based on torture and summary executions do not exhaust the list

of actions that may appropriately be covered [by the Alien Tort Act]. That

statute should remain intact to permit suits based on other norms that

already exist or may ripen in the future into rules of customary

international law. The scope of the Alien Tort Act remains undiminished

by enactment of the Torture Victim Act.

Karadzic, 70 F.3d at 241 (alteration in original) (citation omitted) (quoting HOUSE REPORT 367, supra note 53, at 4).

(73) See id. at 240; Filartiga, 630 F.2d at 889. In commentary on the district court opinion, one scholar has noted that none of the precedents relied upon by the district court proscribed liability for private actors under international law. See Brandt, supra note 9, at 1439. Prior cases have explicitly left open this question and have limited decisions to the facts of each case. See id. There has been "no attempt to shield all non-state acts from liability under the Alien Tort Statute." Id. In the Karadzic actions, the atrocities alleged were prohibited by international law and triggered the application of the humanitarian laws of the Geneva Conventions, which are applicable during an armed conflict. See id. Neither customary international law nor the Geneva Conventions prohibits individual accountability for the alleged crimes. See id.

(74) Karadzic, 70 F.3d at 241.

(75) See id.; see also note 27 and accompanying text (arguing that the general practices of nations establish a jus cogen).

(76) See supra notes 27-37 and accompanying text (citing to the Geneva Conventions and discussing the standards of human rights embodied in the Conventions).

(77) See Genocide Convention, supra note 34, at art. 4.

(78) Karadzic, 70 F.3d at 241; see Brandt, supra note 9, at 1426-36 nn.66-66 (arguing that the acts committed in Bosnia are violations of customary international law and the treaties entered into by the United States because the Alien Tort Act applies through the prohibitions contained in the Geneva Conventions and the Genocide Convention, which are widely recognized as customary international law). On May 22, 1992, the Bosnian-Serbs agreed to be bound by all of the rules of war that applied to an international armed conflict. See id. at 1427 & n.79. While the application of the prohibitions in the Geneva Conventions varies depending on the nature of the conflict, i.e., international versus noninternational, there is recourse to Common Article 3. See supra note 29 and accompanying text (discussing Common Article 3). Common Article 3, which provides minimum protections for internal conflicts, "explicitly proscribes the non-state action of organized armed groups . . . land further provides that] all armed factions must prohibit murder, cruel treatment, torture, outrages upon personal dignity and humiliating and degrading treatment." Id. at 1431. Under Common Article 3 each faction to a conflict is required "to provide humane treatment to all `persons taking no active part in the hostilities' regardless of nationality." Id. at 1430 (quoting Common Article 3).

(79) Karadzic, 70 F.3d at 241 (quoting the Genocide Convention, supra note 34, at art. IV).

(80) Id. at 242 (discussing how rape may be used as a means of genocide). While Karadzic has not personally carried out the alleged atrocities on a mass scale, he may be held responsible through the doctrine of command responsibility.

[T]he doctrine of command responsibility imposes vicarious liability on

persons in a command structure for failure to prevent or punish abuses that

he or she knew or should have known that subordinates were committing. Hence,

military or political leaders may be held civilly liable under the Alien Tort

Statute for abuses committed by troops under their command or control if

such acts violate either a United States treaty or the law of nations.

Brandt, supra note 9, at 1435. This is especially relevant in the context of the Bosnian conflict as the atrocities have been publicly documented and witnessed by the world. See id. at 1443 & n.40 (discussing and citing reports of violence by Serbian soldiers). "Helsinki Watch has noted that '[t]he public nature of the abuses and the frequency with which they take place indicate that individual [Serbian] soldiers and military units do not anticipate disciplinary action by their superiors."' Id at 1420 (alteration in original) (quoting II HELSINKI WATCH WAR CRIMES IN BOSNIA-HERCEGOVINA 8 (1993)). However, evidence presented at the Bosnian war crimes trials supports the public reports of violence and leads one to believe that soldiers committed these acts of violence pursuant to direct orders from Karadzic. See id. at 1421 & nn.46-47 (stating that one Serbian soldier testified that Karadzic ordered soldiers to rape Muslim women); Caroline D. Krass, Bringing the Perpetrators of Rape in the Balkans to Justice: Time for an International Criminal Court, 22 DENV. J. INT'L L. & POL'Y 317, 321 (1994) (discussing rape as a means of genocide and the chain of liability for a policy of systematic rape "[b]ecause the perpetrators intend the elimination of the child-bearing capability [through abuse, injury, and stigma] of Muslim women and girls as a consequence of rape"); Kresock supra note 3, at 224-26 (discussing the two-fold purpose of rape as genocide and the establishment of detention centers for the purpose of systematic rape); Pratt & Fletcher, supra note 6, at 87-93 (characterizing rape as a crime against humanity).

(81) See Karadzic, 70 F.3d at 243.

(82) See id.; supra note 80 and accompanying text (arguing that Karadzic may be held liable for the crimes of violence through the doctrine of command responsibility).

(83) Karadzic, 70 F.3d at 242.

(84) Id. at 243. Common Article 3 prohibits the following acts:

(a) violence to life and person, in particular murder of all kinds,

mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular

humiliating and degrading treatment;

(d) the passing of sentences and carrying out of

executions without previous judgment pronounced by a regularly constituted

court, affording all the judicial guarantees which are recognized as

indispensable by civilized peoples.

Id. (quoting Geneva Convention 1, supra note 29, at art. 3(1)). Furthermore, under the Geneva Convention Relative to the Protection of Civilian Persons in Times of War, the crimes of rape and forced prostitution are explicitly prohibited and acts of forced pregnancy and maternity are implicitly prohibited. See Geneva Convention IV, supra note 29, at art. 27. Thus, any form of indecent assault is prohibited and "rape is also proscribed under the `Grave Breaches' provisions of the Geneva Conventions." Brandt, supra note 9, at 1441.

(85) See Karadzic, 70 F.3d at 243.

(86) See id.

(87) Id.

(88) See supra notes 74-85 and accompanying text (discussing violations of international law under the classifications of genocide and war crimes).

(89) Karadzic, 70 F.3d at 244.

(90) See Kadic v. Karadzic, 886 F. Supp. 734, 742 (S.D.N.Y. 1994), rev'd, 70 F.3d 232 (2d Cir. 1996), cert. denied, 116 S. Ct. 2524 (1996).

(91) See Karadzic, 70 F.3d at 244 (deciding whether the actions of Karadzic constitute state action).

(92) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES [Sections]201 (1986). See Texas v. White, 74 U.S. (1 Wall.) 700, 720 (1868) (discussing the definition of a state and indicating that the primary characteristic of a state is a community of people); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir. 1991) (holding that the Palestine Liberation Organization does not satisfy the definition of a state); National Petrochemical Comp. of Iran v. The M/T Stolt Sheaf, 860 F.2d 561, 553 (2d Cir. 1988) (suggesting that the Executive Branch may informally recognize a government as a state for the purpose of bringing suit). The court also noted that the United States Supreme Court has stated in dicta that "'any government, however violent and wrongful in its origin, must be considered a de facto government if it was in the full and actual exercise of sovereignty over a territory and a people large enough for a nation.'" Karadzic, 70 F.3d at 244 (quoting Ford v. Surget, 97 U.S. 594, 620 (1878)).

(93) See Karadzic, 70 F.3d at 244 (suggesting that a state meets the requirements of statehood regardless of external recognition by other nation states).

(94) See Brandt, supra note 9, at 1417 (discussing the disintegration of the former Yugoslavia).

(95) See id.

(96) Id. Additionally, Karadzic has engaged in a number of international negotiations and relations, including visits to the headquarters of the United Nations in New York, which are discussed in the Karadzic opinion. See 70 F.3d at 237. Furthermore, the United States has not recognized Srpska as a nation or Karadzic as a head-of-state. See id. at 245, 248.

(97) See id. at 244-45.

(98) Id. at 245.

(99) See Torture Victim Protection Act of 1991, Pub. L. No. 102-256, [section] 2(a), 106 Stat. 93, 94-96 (1992) (codified at 28 U.S.C. [section] 1350 note (1994)); supra note 52 and accompanying text (quoting and discussing the TVPA in the context of the district court decision).

(100) U.S. CONST. art. I, [section] 8, cl. 10.

(101) Filartiga v. Pena-Irala, 630 F.2d 876, 886 (2d Cir. 1980).

(102) See U.S. CONST. art. III, [section] 2, cl. 1 (commanding that "judicial [plower shall extend to . . . the [l]aws of the United States"); Schwartz, supra note 25, at 287 (discussing the constitutional basis for the TVPA). International law is incorporated into federal common law and federal statutory law through practice and treaties. See Karadzic, 70 F.3d at 246 (characterizing the incorporation of international law into common law as a "settled proposition"). Therefore, as part of the law of the United States, international law becomes incorporated as the highest law of the land. See U.S. CONST. art. VI, [section] 2 ("[T]he laws of the United States . . . shall be the supreme [l]aw of the [l]and.").

(103) Filartiga, 630 F.2d at 886; see Schwartz, supra note 26, at 277 (discussing the case law which holds that a court may find a violation of the law of nations even though Congress has not defined the law of nations). Judge Bork's analysis in Tel-Oren v. Libyan Arab Republic, 726 F.2d 744 (D.C. Cir. 1984), required an express statement from Congress for a private right of action prior to the consideration of any case that might affect United States foreign relations. See Schwartz, supra note 25, at 283 (reviewing, but not criticizing, the opinion of Judge Bork in Tel-Oren). Judge Bork failed to recognize that the claims permissible under the Alien Tort Act incorporated customary international law as part of the law of nations. See id. at 283-84. The enactment of the TVPA as part of the Alien Tort Claims Act provided Judge Bork with what he asked for while stating that it had previously existed. See id at 283.

(104) Karadzic, 70 F.3d at 245; see supra note 52 and accompanying text (quoting and discussing the TVPA in the context of the district court opinion in Karadzic).

(105) Karadzic, 70 F.3d at 245 (alteration in original) (quoting HOUSE REPORT 367, supra note 53, at 5). When interpreting the TVPA, a court should analyze principles of agency law and case law arising under 42 U.S.C. [section] 1983. See id. (interpreting the TVPA in the context of the Karadzic actions); Schwartz, supra note 25, at 290-98 (discussing the TVPA and individual accountability).

(106) See Schwartz, supra note 25, at 292 (concluding that the Foreign Sovereign Immunities Act provides a basis for jurisdiction over states, while the TVPA provides a basis for jurisdiction over individuals).

(107) at 275.

(108) Id. at 275-76.

(109) Id. at 284.

(110) See Karadzic, 70 F.3d at 246.

(111) See id.; 28 U.S.C. [sections] 1331 (1994).

(112) See id. at 246.

(113) Id. In particular, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment allows all party nations to provide causes of action for individuals to obtain remedies. See Convention Against Torture and Other Gruel Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/46 (1984). This Convention, however, is not self-executing. See id. at art. 2(1). In fulfillment of our obligations under this Convention, Congress enacted the TVPA. See Schwartz, supra note 25, at 285, 296, 299 (discussing the enactment of the Convention Against Torture).

(114) See Karadzic, 70 F.3d at 246 (citing the following eases for support: Abebe-Jiri v. Negewo, No. 90-2010 (N.D. Ga. Aug. 20, 1993), appeal argued, No. 93-9133 (11th Cir. Jan. 10, 1995); Martinez-Baca v. Suarez-Mason, No. 87-2057, slip op. at 4-5 (N.D. Cal. Apr. 22, 1988); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1544 (N.D.Cal. 1987)).

(115) See id.; see also U.S. CONST. art. III, [section] 2, cl. 2 (commanding that "judicial [plower shall extend to all [c]ases . . . arising under [the] Constitution, the [l]aws of the United States, and It]reaties made . . . under their authority"); Krass, supra note 80, at 343-46 (discussing treaty obligations). The voluntary treaty obligations that bind the factions now fighting in Yugoslavia cannot be objected to or refused until the hostilities cease. See id. at 330.

(116) See Karadzic, 70 F.3d at 246; Filartiga, 630 F.2d at 887 n 22.

(117) See Karadzic, 70 F.3d at 246-47.

(118) 495 U.S. 604 (1990); see Karadzic, 70 F.3d at 323. "Fed.R.Civ.P. 4(e)(2) specifically authorizes personal service of a summons and complaint upon an individual physically present within a judicial district of the United States, and such personal ser. vice comports with the requirements of due process for the assertion of personal jurisdiction." Id. at 347; see Schwartz, supra note 25, at 307 (discussing personal jurisdiction such that "tag" jurisdiction in the forum state should be sufficient outside of an express agreement by the forum state not to attribute certain contacts to the defendant).

(119) See Karadzic, 70 F.3d at 247. In support of his argument, karadzic relies on federal common law immunity and an agreement regarding the use of the headquarters of the United Nations. See id.; Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, June 26, 1947, reprinted in 22 U. S.C. [section] 287 note (1994).1hereinafter Headquarters Agreement].

(120) See Karadzic, 70 F.3d at 247.

(121) Headquarters Agreement, supra note 119, [section] 15(4).

(122) See Karadzic, 70 F.3d at 247.

(123) Id. at 247.

(124) Id. This is of particular note as Karadzic was staying in hotels outside of the headquarters district and was conducting fund-raising activities not sanctioned by the United Nations. See id. at 246-47. In rejecting Karadzic's claims to immunity, the court stated that Karadzic's claims would "effectively create an immunity from suit for United Nations invitees where none is provided by the express terms of the Headquarters Agreement." Id. at 247; see Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 48 (2d Cir. 1991) (refusing to extend the immunities granted beyond those expressly mentioned in the headquarters agreement).

(125) Karadzic, 70 F.3d at 247 (quoting Letter from Michael J. Habib, the Director of Eastern European Affairs for the United States Department of State, to Beth Stephens (Mar.24, 1993)).

(126) Id.; see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 469 reporter's note 8 (1986) (stating that an "invitee is not immune from suit or legal process outside the headquarters district during his sojourn in the United States").

(127) See Karadzic, 70 F.3d at 248.

(128) See id. at 248.

(129) Id. (citing Mexico v. Hoffman, 324 U.S. 30, 35 (1945), which stated that "it is the duty of the courts, in a matter so intimately associated with our foreign policy . . . not to enlarge an immunity to an extent which the government . . . has not seen fit to recognize"). Furthermore, because Congress has taken the time to explicitly delineate applicable immunities, it is unlikely that a court would seek to enlarge those immunities. See Schwartz, supra note 25, at 306-07 (arguing that "courts should be reluctant to expand the scope of immunities beyond those specified").

(130) See Karadzic, 70 F.3d at 248.

(131) Id.

(132) See id. at 248-50 (discussing the considerations relevant to justiciability).

(133) Id. at 249 (citations omitted).

(134) See Krass, supra note 80, at 326-26 (discussing previously awarded damages under the Alien Tort Act and the TVPA which removes one hurdle to jurisdiction but adds two more: the exhaustion of foreign remedies and a ten year statute of limitations).

(135) See Karadzic, 70 F.3d at 248-50.

(136) See id. at 250.

(137) Id.

(138) Schwartz, supra note 25, at 310. The "head of state and diplomatic immunities, while preserved by the TVPA, are not likely to prevail in more than a small percentage of cases. They should be available only to accredited diplomats and heads of recognized states and only while they are actually in office." Id. at 307. Furthermore, former heads of state are not protected from liability. See id at 307-10 (discussing head-of-state immunities). The Karadzic decision noted that it would be the rare case where this doctrine would preclude suit pursuant to section 1350. See 70 F.3d at 250.

(139) See Karadzic, 70 F.3d at 250; S. REP. No. 102-249 at 9-10 (1991), reprinted in 1991 U.S.C.C.A.N.88,89 [hereinafter SENATE REPORT 249]. In fact, as a general matter, the Senate committee recognized "'that in most instances the initiation of litigation under this legislation will be virtually prima facie evidence that the claimant has exhausted his or her remedies in the jurisdiction in which the torture occurred.'" Schwartz, supra note 25, at 312 (quoting SENATE REPORT 249, supra, at 9-10). "'The committee believe[d] that courts should approach cases brought under the [TVPA] with this assumption."' Id. at 312-13 (quoting SENATE REPORT 249, supra, at 9-10).

(140) See Karadzic, 70 F.3d at 250-51; see also Krass, supra note 80, at 332-33 (discussing that the International Court of Justice would lack jurisdiction as the International Court of Justice only entertains claims from nation states).

(141) See Karadzic, 70 F.3d at 249 (characterizing the political question doctrine as a doctrine which prevents a court from deciding "political questions," but not a doctrine which prevents a court from deciding apolitical cases").

(142) 369 U.S. 186 (1962). In deciding whether to apply the political question doctrine, the Baker court looked to the following six factors:

[1.] a textually demonstrable constitutional commitment of the issue to a

coordinate political department; . . . [2.] a lack of judicially

discoverable and manageable standards for resolving it; . . . [3.] the

impossibility of deciding without an initial policy determination of a kind

clearly for nonjudicial discretion; . . . [4.] the impossibility of a

court's undertaking independent resolution without expressing lack of the

respect due coordinate branches of government; . . . [5.] an unusual need

for unquestioning adherence to a political decision already made; . . .

[6.] the potentiality of embarrassment from multifarious pronouncements by

various departments on one question. Id. at 217.

(143) See Karadzic', 70 F.3d at 249.

(144) See id. at 250.

(145) Id.; see supra note 125 and accompanying text (discussing and quoting the letter sent by the Department of State).

(146) Karadzic', 70 F.3d at 260 (quoting the Statement of Interest of the United States from the Solicitor General at 3). The court also noted that even if the Executive Branch asserted the political question doctrine, it would not necessarily prevent the court from hearing the case. See id.

(147) See Schwartz, supra note 25, at 311-12 (discussing the Baker factors and the statements of Congress and concluding that courts may not decline to hear TVPA cases on the basis of the political question doctrine).

(148) See Kadic v. Karadzic, 116 S. Ct. 2524 (1996).

(149) Paust, supra note 22, at 614 (emphasis added) (discussing article 8 of the Universal Declaration of Human Rights which provides that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or law" and how international law is incorporated into the federal common law of the United States).

(150) See supra note 113 and accompanying text (discussing the Convention Against Torture and the enactment of the TVPA).

(151) Paust, supra note 22, at 616.

(152) See Memorandum for the United States, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090).

(153) Id. at 618.

(154) See Schwartz, supra note 25, at 328 (arguing that the Alien Tort Act does not conflict the rights of government).

(155) See id.

(156) See id. at 328-30 (discussing the non-intrusive nature of such actions particularly in light of the protection of human dignity and equality for acts of torture and extrajudicial killing).

(157) See Pearl, supra note 2, at 1401-05 (discussing the possible fallout from decisions in this area and reasons for expediting the gathering of evidence and the trial of criminals).

(158) See Schwartz, supra note 25, at 334 (reviewing the arguments against imposing civil liability on people who violate international law).

(159) See Krass, supra note 80, at 343-46 (arguing for the International Criminal Court to hear civil claims and compensate victims); supra note 59 and accompanying text (discussing the creation of the International Tribunal and civil sanctions).

(160) Even in light of the complications regarding enforcement of any decision, a forum is still of great value. See Krass, supra note 80, at 329-30 (arguing that civil judgments would at the very least prohibit violators of international law from entering the United States).

The mere existence of a law under which a cause of action for torture

and extrajudicial killing can be brought and a judgment obtained serves to

ameliorate some of the effects of such conduct. Plaintiffs who have won

default judgments but failed to collect full compensation for their injuries

have expressed some satisfaction from the fact that the

judgment announces that the defendant has transgressed upon human rights

norms. And such judgments may deter the unlawful conduct in the future,

both directly and because they may promote dialogue between the executive

branches of governments. Still, without the ability to recover full

compensation for the injury, the therapy needed to ameliorate

the physical and psychological effects of torture may be too expensive. And

without the ability to force the wrongdoer to pay fully for the consequences

of his conduct, future transgressions will not be as effectively deterred.

Schwartz, supra note 25, at 333.

Beth Ann Isenberg This Comment is dedicated to Arthur and Carolyn Isenberg with my deepest gratitude for all of their love and support. Special thanks also to Peter Halewood and Traci Crumb for their assistance with this Comment and the Symposium, and to C.J. Kempf and the editorial staff of the Albany Law Review for all of their fine work.

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