The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court
Leval, Pierre N., Foreign Affairs
In late 1945, the Allied victors of World War II established a military tribunal in Nuremberg, Germany, which convicted Nazi leaders for their wartime atrocities. The animating principle of the trials was that conduct of extreme inhumanity violated the part of international law that protects fundamental human rights, which applies everywhere, even though the conduct was authorized by German law under the Third Reich. Since then, the world has accepted that the worst human rights abuses-including genocide, slavery, torture, and war crimes-are crimes prohibited by international law, even if they are expressly permitted by the laws of the state in which they occur.
Yet over 65 years after Nuremberg, although the world remains awash in these atrocities, the prohibitions of international law are largely toothless, especially when the abusive governments remain in power. The international community has established criminal tribunals to try abusers, but those who remain in power are ordinarily shielded from prosecution by their government and its protectors. Victims seeking recognition of the wrongs done to them and compensation for their suffering cannot get relief in their home countries, and they have practically no courts available to them elsewhere.
Since 1980, they have been able to turn to the United States. That year, a U.S. appeals court, invoking a previously obscure law known as the Alien Tort Statute (ats), allowed U.S. federal courts to hear civil suits brought by foreign citizens against foreign defendants for crimes committed on foreign soil, provided that the defendant brought himself within the territorial reach of the court. The ats offers victims of abuse a rare tool in their fight for justice; the United States remains the only country in the world to entertain such lawsuits. Now, however, the U.S. Supreme Court may slam shut the door on such plaintiffs, relying in part on the argument that other countries do not offer such relief. During proceedings held last year, the Court hinted that it may altogether ban ats cases based on foreign abuses.
At the very least, keeping courts open to civil suits about human rights can bring solace and compensation to victims. More important, these suits draw global attention to atrocitie s, and in so doing perhaps deter wouldbe abusers. And they give substance to a body of law that is crucial to a civilized world yet so underenforced that it amounts to little more than a pious sham. The Supreme Court should continue to interpret the ats as opening the doors of U.S. federal courts to victims of foreign atrocities who cannot get justice elsewhere, and other countries should adopt laws that open the doors of their courts as well.
THE ENFORCEMENT GAP
Respect for fundamental human rights in the world today is dismal-better, no doubt, than it was 200 years ago, but dismal nonetheless. As in the past, despotic regimes murder, mutilate, and rape civilian populations and arbitrarily imprison and torture political opponents. Human traffickers, almost invariably operating with the protection of corrupt local officials and police, enslave children and young women in the sex trade. So long as the regimes that sponsor and protect these criminals remain in power, their crimes go unrecognized.
To deal with the effective immunity of abusers whose regimes remain in power, international law has developed the doctrine of universal jurisdiction, which holds that trials for certain offenses may be heard in courts throughout the world if the defendant cannot be brought to justice in the country where he committed them. And following the example of Nuremberg, the international community has created international criminal courts, generally at The Hague, in the Netherlands, which hear trials of offenses committed anywhere.
Despite this framework, however, prohibitions against atrocities are rarely enforced. Criminal prosecutions in international tribunals are infrequent, slow, and inefficient. …