31 GALR 281 Page 1 31 Ga. L. Rev Georgia Law Review Fall Recent Development KADIC V. KARADZIC: MISINTERPRETING THE ALIEN TORT CLAIMS ACT

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1 31 GALR 281 Page 1 Georgia Law Review Fall 1996 Recent Development KADIC V. KARADZIC: MISINTERPRETING THE ALIEN TORT CLAIMS ACT Peter Schuyler Black Copyright (c) 1996 Georgia Law Review Association, Inc.; Peter Schuyler Black I. Introduction The cryptic words contained in the Alien Torts Claims Act (ATCA) [FN1] were penned by Oliver Ellsworth as part of the Judiciary Act of [FN2] Congress originally enacted the ATCA to give the newly created federal courts jurisdiction over civil suits brought by alien individuals. [FN3] Exactly which causes of action Congress had in mind, however, is somewhat of a mystery. [FN4] This mysterious background is due partly to a lack of legislative history and partly to a lack of interpretive case law. [FN5] Shortly after its enactment the ATCA lapsed into disuse and obscurity. [FN6] After almost two hundred years of dormancy, it was resurrected by the Second Circuit in 1980, [FN7] and has since been used almost exclusively by human rights groups to bring suits against human rights violators from foreign countries. [FN8] Courts have struggled with the application of this statute because it grants no cause of action to aggrieved individuals, but rather merely grants jurisdiction over a tort committed in violation of the law of nations. [FN9] Thus, a plaintiff must find a cause of action in the law of nations; or more specifically, in modern international customary law. [FN10] Finding such a cause of action, however, can be a daunting task because international customary law is often ambiguous and controversial. [FN11] As courts struggled with the application of the ATCA, Congress enacted the Torture Victim Protection Act (TVPA) [FN12] to codify some of the developing case law. [FN13] The TVPA provided some clarification regarding what claims may be brought under the ATCA by expressly creating a statutory cause of action for torture and extrajudicial killing committed by a government official. [FN14] Uncertainty persisted, however, because the TVPA provides no guidance in determining whether other violations of international law may give rise to actionable claims under the ATCA. In Kadic v. Karadzic, [FN15] the Second Circuit faced a novel issue involving the scope of subject matter jurisdiction under the ATCA. The defendant in Kadic allegedly committed numerous violations of international law, but was not acting on behalf of any recognized government when these violations occurred. [FN16] The defendant, however, was not a purely private actor either; rather, he acted on behalf of an insurgent military group prosecuting an ethnic civil war against a recognized government. [FN17] The Second Circuit was forced to decide whether the defendant's egregious conduct violated international law. [FN18] More specifically, the court had to determine whether international law can even apply to conduct that is neither purely statist nor purely private, but is something in between. Although the Second Circuit correctly held that the conduct at issue qualified for subject matter jurisdiction

2 31 GALR 281 Page 2 under the ATCA, it fumbled its analysis of the underlying issues. Instead of recognizing that the defendant's conduct, although not technically statist, could be treated as such for purposes of the ATCA, the Second Circuit rejected the state-action requirement altogether, reasoning that a nonstate actor is bound by, and may therefore violate, the law of nations. Although the court did find a state-action requirement with respect to some of the plaintiffs' claims, the court proceeded to hold that this requirement could be satisfied by showing that either the defendant's insurgent military group was a state or that the defendant acted in concert with a recognized state. [FN19] This analysis is problematic because it is artificial and raises disturbing policy implications. The court's analysis is artificial because it glosses over the unique character of an insurgent military group in international law. First, the group exists not as a legitimate government, but rather in defiance of a legitimate government. Second, any territory controlled by the group is usually seized through the use of illegal military force. To declare this type of group a state is to overlook these important characteristics. Recognizing an insurgent military group as a state raises important policy concerns. Declaring such an entity a state bestows upon it an undeserved legitimacy. Also, once the court declares this group to be a state, in order to be consistent the court should give it the same rights under international law as any other legitimate state. Although an insurgent military group should be held accountable for its actions under international law, it should not be raised to the status of a state. In addition to its problematic reasoning with respect to these issues, the court failed to properly consider the doctrine of forum non conveniens. Although Kadic presents an unlikely case for dismissal under this doctrine, the court nevertheless should have gone through the analysis and discussed what alternative forums might have been available and why they were or were not sufficient. Although the Second Circuit ultimately reached the correct result, its reasoning creates troubling policy implications and therefore must be critically examined. To facilitate this examination, Part II of this Comment describes the facts and holding of Kadic. Part III provides the legal background by describing the development of ATCA jurisprudence. Part IV presents the Second Circuit's analysis of the issues, and Part V criticizes the court's reasoning and illustrates the ramifications of its flawed analysis. Part VI then offers an alternative analysis that reaches the same result in a more sensible way. This Comment argues that courts should not obliterate the state-action requirement in order to hold insurgent military groups liable under the ATCA. Instead, courts should treat such groups as de facto governments or quasi-state entities whose actions independently satisfy the state-action requirement of international law. II. Facts and Background On February 29, 1992, Bosnia-Herzegovina declared its independence from Yugoslavia by popular referendum. [FN20] The Bosnian Serbs, however, boycotted the referendum and declared their own independence. [FN21] When the Bosnian state was officially recognized by the international community, the Bosnian Serbs, led by Radovan Karadzic, attacked Sarajevo. [FN22] The fighting soon escalated into an all-out civil war pitting Karadzic's rebel Serbs against the Muslim Bosnian government. [FN23] As part of their military policy, the Bosnian Serbs conducted a genocidal campaign of ethnic cleansing in which they committed numerous atrocities against the Bosnian Muslims and Croats. [FN24] The plaintiffs in Kadic were two groups of Croat and Muslim victims of these Serbian atrocities. [FN25] The first group was organized and represented by the New York-based Center for Constitutional Rights (CCR), a publicinterest group dedicated to litigating international human rights cases against right-wing officials and their governments. [FN26] The second group was organized and represented by Catherine MacKinnon of the National Organization for Women Legal Defense and Education Fund. [FN27] The plaintiffs alleged that they were victims (or representatives of victims) of numerous human rights violations committed by Bosnian-Serb soldiers during their cam-

3 31 GALR 281 Page 3 paign of ethnic cleansing, including acts of rape, forced prostitution, forced impregnation, torture, and summary execution. [FN28] The defendant was Radovan Karadzic, the leader of the Bosnian-Serb forces that allegedly carried out these atrocities. [FN29] In addition to leading the Serb rebels, Karadzic claims to be the leader of Srpska, a selfproclaimed Bosnian-Serb state that is not recognized by any international organization. [FN30] The plaintiffs claimed that Karadzic masterminded the systematic human rights violations committed by the Bosnian-Serb forces. They also claimed that in committing these acts, Karadzic acted in an official capacity as either the head of Srpska or in collaboration with the government of the recognized nation of Serbia. [FN31] The court consolidated the plaintiffs' complaints into a class action seeking compensatory damages, punitive damages, attorneys' fees, and injunctive relief. [FN32] In 1993, while present in the United States as an invitee of the United Nations, Karadzic was personally served with the summons and complaint. [FN33] Shortly thereafter, Karadzic moved for dismissal on the grounds of defective service of process, lack of personal jurisdiction, lack of subject matter jurisdiction, and nonjusticiability of the plaintiffs' claims. [FN34] Without deciding the other issues, the district court granted Karadzic's motion to dismiss for lack of subject matter jurisdiction. [FN35] The court held that neither the ATCA, [FN36] nor the TVPA, [FN37] nor the general federal-question jurisdiction statute, [FN38] provided subject matter jurisdiction for atrocities committed by nonstate actors in foreign countries. [FN39] The court reasoned that because Karadzic was not the leader of a recognized nation he was a private, nonstate actor and therefore his acts did not qualify for the jurisdiction of United States federal courts. [FN40] The Second Circuit, however, reversed the district court, holding that the ATCA gave the district court subject matter jurisdiction over some violations of international law even when committed by a private actor, and that Srpska could qualify as a state despite its lack of official recognition. [FN41] Because it found subject matter jurisdiction under the ATCA, the Second Circuit declined to consider whether the plaintiffs' allegations presented a federal question under 28 U.S.C. S [FN42] Thus, the court remanded the case to the district court to consider whether Srpska was a state, whether aid from Serbia satisfied the state-action requirement under the TVPA, and for a possible a trial on the merits. III. Relevant Law The Second Circuit, in holding that the federal courts have subject matter jurisdiction over the atrocities committed by Karadzic's troops, wrestled with the difficult problem of how to deal with the conduct of an insurgent military group that is neither a state entity nor a private actor. In order to properly assess the court's analysis, however, it is first necessary to examine the background and development of the law under the ATCA. a. alien tort claims act (atca) Congress enacted the ATCA as part of the Judiciary Act of 1789, [FN43] a jurisdictional statute which granted jurisdiction over certain areas of law to the newly created federal district courts. [FN44] It provided, in its original text, as follows: (United States District Courts) shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. [FN45] The Act as a whole was obviously designed to organize the newly created federal judicial system, [FN46] but the purpose of the cryptic language in the ATCA is not so clear. Indeed, the ATCA has been described as an old but little used section (and)... a kind of legal Lohengrin;... no one seems to know whence it came. [FN47] It

4 31 GALR 281 Page 4 can be inferred that because it was a jurisdictional statute, the ATCA was not intended to create any new cause of action, but rather to grant jurisdiction over those already in existence. [FN48] Exactly which causes of action, however, is the subject of some controversy. [FN49] Notwithstanding the lack of official legislative history, some commentators have engaged in studies of historical documents and events in order to better understand the statute's purpose, which in turn may provide assistance to the judges who must apply it. [FN50] Professor Joseph Sweeney published such a study in 1995, propounding one theory to explain the purpose of the ATCA. [FN51] Sweeney contends that the ATCA specifically referred to a suit in a unique and specialized body of law known as the law of prize. [FN52] He therefore argues that the ATCA's purpose at the time of its drafting was to grant concurrent jurisdiction to the federal district courts over this specific cause of action, which previously had been heard only in colonial admiralty courts functioning as prize courts during times of war. [FN53] Specifically, Sweeney traces the words tort only and in violation of the law of nations or a treaty of the United States directly to language from case law in prize cases. [FN54] At the time Congress enacted the ATCA, United States war ships were allowed to capture enemy merchant vessels during times of war pursuant to the law of prize. [FN55] The American ship's commander could then have the enemy vessel and cargo condemned as lawful prize in the United States prize courts. [FN56] During these seizures, however, the captors were forbidden to do injury to persons or property aboard the intercepted vessels. [FN57] Indeed, (a)n alien who was the victim of such an injury had a cause of action against the commander of the United States ship. [FN58] In 1789, the Judiciary Act's purpose was to wrest the jurisdiction over prize cases from state (previously colonial) prize courts and vest it in the newly created federal courts. Under the new scheme, federal courts obtained exclusive jurisdiction to decide the legality of a capture as prize and any issue incidental to the capture.... [FN59] If the legality of the capture was not at issue, however, and the case was one in which an alien sued for a tort only, the ATCA made the jurisdiction of the federal courts concurrent with the jurisdiction of the state courts. [FN60] Professor Sweeney's theory is bolstered by the early case law under the ATCA. The first case in which an alien plaintiff asserted an ATCA claim was a prize case in which the owners of a British ship sued its French captors. [FN61] The owners sought restitution of the ship and its cargo, as well as damages for the vessel's detention. [FN62] The court dismissed the case on the grounds that it had no jurisdiction under the ATCA because the suit was not for a tort only, but rather was principally for restitution of the property. [FN63] Two years later, a district court in South Carolina held that it had subject matter jurisdiction over a prize case pursuant to its admiralty jurisdiction and the ATCA. [FN64] This case also involved a suit by a British owner against a French captor for restitution of the seized cargo. [FN65] The court held that, pursuant to a treaty between the United States and France, the French privateer was permitted to keep the prize. [FN66] In both of these cases, alien plaintiffs relied on the ATCA for federal subject matter jurisdiction; thus these cases demonstrate that the ATCA was originally used in a way consistent with Professor Sweeney's theory. In contrast to Professor Sweeney's theory, Professor William Casto argues that the ATCA was intended to grant jurisdiction over a wide range of torts committed in violation of the law of nations. [FN67] Specifically, he argues that the ATCA was enacted in order to allow alien plaintiffs such as ambassadors an impartial forum in which to bring claims. [FN68] He argues further that the ATCA is a reaction to a few cases in which foreign ambassadors' claims were mishandled by state courts. [FN69] The law of nations in 1789, however, was limited to three areas of law: (1) violations of safe-conducts; (2) infringement of the rights of ambassadors; and (3) piracy. [FN70] Therefore, even under this view there was a relatively small range of torts that fell within the purview of the ATCA. Moreover, Professor Casto's view does not adequately explain the unique wording of the ATCA or why the ATCA was only invoked in prize cases. The ATCA grants jurisdiction for suits by an alien for a tort only. [FN71] Professor Casto explains that the Framers used the phrase tort only in order to exclude() minor commercial disputes arising under (a branch of international law called) the law of merchant. [FN72] This theory, however, is not convincing because it does not specify how the presence of the word only excludes minor commercial disputes. Under Professor Casto's theory, the word only is surplusage.

5 31 GALR 281 Page 5 Professor Sweeney's argument, on the other hand, adequately explains the presence of the word only. He argues that the word is meant to separate the issue of a capture's legality under the law of prize from any incidental tort claims. [FN73] If an alien does not contest the legality of the seizure and sues for a tort only, the district court's jurisdiction is concurrent with that of the state court. [FN74] If the alien also contests the legality of the seizure, however, the federal court will have exclusive jurisdiction over both the tort claim and the legality issue. [FN75] The important point is that the ATCA is only a jurisdictional statute. It did not create an independent cause of action; it merely bestowed federal subject matter jurisdiction over some existing causes of action. [FN76] Whether the cause of action arose from the law of prize or from some general tort in violation of the law of nations, it was still an existing cause of action. Thus, an actionable claim under the ATCA must be found in another body of law. The question therefore arises of whether we should remain true to the intent of the drafters and interpret the ATCA based on the causes of action they intended it to cover, or whether we should interpret it with reference to the modern view of what constitutes a violation of the law of nations or a treaty of the United States? This question was answered in part by case law and in part by the enactment of the TVPA. b. case law interpreting the atca 1. Filártiga v. Peña-Irala. Prior to the Second Circuit's landmark ruling in Filártiga v. Peña-Irala, [FN77] the ATCA had been successfully invoked only once in the preceding 150 years. [FN78] Because of this lack of case law, [FN79] Filártiga is widely regarded as the case that set modern precedent for interpreting the ATCA. [FN80] In Filártiga the Second Circuit held that the ATCA gave the federal courts subject matter jurisdiction over a suit by the family of a torture and murder victim against the Paraguayan government official who allegedly committed the acts. [FN81] Subsequent cases have cited Filártiga for three propositions: First, the law of nations should be construed as it exists among the nations of the world today, not as it existed in [FN82] Second, one source of that law is the customs and usages of civilized nations, as described by jurists and commentators. [FN83] Third, modern international law places limits on a state's power to torture persons held in its custody. [FN84] These propositions in turn lead to the conclusion that the ATCA no longer grants jurisdiction over a circumscribed group of claims as intended by its drafters, but rather grants jurisdiction over a potentially unlimited number of violations of international law. There are, however, some limiting factors associated with these principles. The most significant of these limitations stems from the requirement that there be a violation of international law for the court to have jurisdiction. [FN85] Because international law binds only states and not private individuals, an individual must be acting on behalf of a state or under the color of state law in order to violate the law of nations. [FN86] This state-action requirement limits the number of defendants to which the ATCA may apply. [FN87] 2. Tel-Oren v. Libyan Arab Republic. The state-action requirement drawn from Filártiga became solidified by Judge Edwards's opinion in Tel-Oren v. Libyan Arab Republic. [FN88] In that case, several Israeli citizens asserted claims of torture, summary execution, and terrorism against the Palestine Liberation Organization (PLO) in connection with a terrorist raid that resulted in the deaths of twenty-two adults and twelve children--all innocent civilians. [FN89] A three-judge panel of the District of Columbia Circuit Court of Appeals unanimously affirmed the dismissal of the claims. [FN90] Dismissal, however, was about all that the judges could agree upon-- all three wrote separate opinions. Judge Edwards's opinion agreed with the holding in Filártiga; his reason for dismissing the case was that the PLO was not a state, and therefore its alleged atrocities did not satisfy the state-action requirement. [FN91] Judge Robb based his opinion on the political-question doctrine, arguing that the Baker v. Carr [FN92] factors cut in favor of dismissal because the issues should be handled by a political branch of government. [FN93] Judge Bork made the same political-question argument, but he also argued that because the ATCA created no cause of action, the court, under separation of powers principles, should refuse to infer one. [FN94] In addition, both Judge Bork and Judge

6 31 GALR 281 Page 6 Robb openly questioned Judge Edwards's reliance on the Filártiga holding. [FN95] The confusion created by these three opinions prompted Congress to pass the Torture Victim Protection Act. [FN96] c. torture victim protection act Congress enacted the Torture Victim Protection Act (TVPA) [FN97] partly to cure the confusion surrounding the ATCA and partly to fulfill obligations imposed by the Convention Against Torture, [FN98] which Congress had ratified two years earlier. [FN99] Section 2 of the TVPA, entitled Establishment of Civil Action, provides: (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. [FN100] The TVPA did three things relevant to the development of case law under the ATCA. First, it affirmed Filártiga's holding that official torture is actionable under the ATCA. [FN101] Second, it affirmed Judge Edwards's interpretation of Filártiga that a person must be a state actor to violate the law of nations under the ATCA. [FN102] Third, it responded to Judge Bork's assertions that the ATCA did not create a cause of action by expressly creating one separate from the ATCA. [FN103] Additionally, however, the TVPA may have limited further expansion of ATCA jurisdiction: by creating an express cause of action for official torture and extrajudicial killing, it impliedly repealed the ATCA with respect to such claims. [FN104] Indeed, although all claims of torture or extrajudicial killing must still be brought under the ATCA for jurisdiction, the cause of action is no longer found in the nebulous world of international customary law, but rather is found in the TVPA. Thus, all such claims are now subject to the TVPA's state-action requirement. Moreover, Congress's codification of the state-action requirement, albeit only with respect to torture and extrajudicial killing, implicitly signals its approval of the premise on which the requirement is based--namely, that the law of nations governs relations between states and therefore cannot be binding on strictly private, individual conduct. [FN105] The reasonable inference to be drawn is that Congress approved of this state-action requirement and expects courts to apply it to other causes of action brought under the ATCA. d. the binding nature of international customary law and the state-action requirement The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. [FN106] These principles and rules are binding on civilized states in their relations with each other. [FN107] The idea that international law applies only between nations has evolved over time, such that international law (has become) applicable to nations acting against their own citizens or to a foreign government acting against an individual. [FN108] In addition to holding nations responsible for actions against individuals, international law has also evolved to include actions by an individual, but only when that individual acts on behalf of a government. This principle is manifested in federal common law as the requirement that an individual must act under color of law in order to violate the law of nations. Veritably, this principle seems embedded in the federal common law. The Second Circuit applied it in Filártiga

7 31 GALR 281 Page 7 to uphold a claim against an official of the Paraguayan government for official torture, [FN109] and since then a handful of courts have followed the Second Circuit by holding that they have jurisdiction over foreign government officials who have violated the law of nations. [FN110] Furthermore, courts have consistently held that actions of purely private individuals are not violations of international law. For example, in Tel-Oren v. Libyan Arab Republic, the District of Columbia Circuit applied this principle to dismiss a suit against the Palestine Liberation Organization (PLO) on the grounds that it was not a state. [FN111] Likewise, in Sanchez-Espinoza v. Reagan, [FN112] Judge Scalia (now Justice Scalia) used the state-action requirement to dismiss a suit against the Nicaraguan Contras: We are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private individuals. As for the law of nations--so-called 'customary international law,' arising from 'the customs and usages of civilized nations,'--we conclude that this does not reach private nonstate conduct of this sort. [FN113] Thus, no court has yet held that a private individual may be liable for a violation of international law. Moreover, Congress approved the principle that international law only binds individuals acting under the color of state law by inserting the state-action requirement into the TVPA. [FN114] Although the TVPA applies only to torture and extrajudicial killing, congressional approval of this principle indicates that Congress favors applying it to other causes of action. Indeed, the state-action requirement was not inserted because torture is somehow more heinous when committed by a state actor than when committed by a private individual; rather, it was inserted as an embodiment of the principle that the law of nations only applies to the relations between states. [FN115] The state-action requirement also serves an important policy function: it limits the scope of potential defendants who may be sued under the ATCA, thereby limiting the amount of potential litigation arising from the creation of a statutory cause of action. The legislative history of the TVPA demonstrates that this policy is favored by Congress. [FN116] President Bush articulated similar policy concerns when he signed the TVPA into law: (T)here is too much litigation at present.... (T)he expansion of litigation by aliens against aliens is a matter that must be approached with prudence and restraint. It is to be hoped that U.S. courts will be able to avoid these dangers by sound construction of the statute and the wise application of the relevant legal procedures and principles. [FN117] Although the TVPA is limited to torture and extrajudicial killing, these same concerns apply with equal force to all violations of international law. IV. The Second Circuit's Analysis In Kadic v. Karadzic, the Second Circuit sought to build on the foundation it had established in Filártiga by expanding the reach of the ATCA to cover causes of action other than torture and to permit nonstate actors to be held liable. The Second Circuit began by reversing the district court's dismissal of the suit, finding that the district court had subject matter jurisdiction under the ATCA for violations of international law committed by a nonstate actor. [FN118] Having thus established subject matter jurisdiction, the court concluded that the service of process on Karadzic had been proper and that he was not immune from the court's personal jurisdiction. Finally, the court held that the case before it did not present a non-justiciable political question. The court therefore remanded the case for a determination of whether Srpska is a state, whether aid from Serbia satisfies the state-action requirement, and finally a possible trial on the merits. a. subject matter jurisdiction The Second Circuit found that the district court had subject-matter jurisdiction under the ATCA because Karadzic's alleged conduct violated international law. [FN119] In doing so, the court applied the construction of the

8 31 GALR 281 Page 8 ATCA it had announced in Filártiga, which holds that the ATCA provides jurisdiction over a case in which (1) an alien sues (2) for a tort (3) committed in violation of the law of nations. [FN120] Because the first two requirements were clearly satisfied in this case, the court focused on whether Karadzic's acts violated the law of nations. [FN121] Determining whether Karadzic's alleged conduct violated international law in turn necessitated a two-part inquiry. First, the court had to decide whether a nonstate actor could be liable at all under the law of nations. [FN122] This inquiry was basically a decision as to whether Filártiga should extend to an individual who is neither a state actor nor a purely private actor. Specifically, the court had to decide how to treat the leader of an insurgent military group allegedly responsible for numerous human rights violations. Second, the court had to determine whether the alleged atrocities amounted to a violation of the law of nations. [FN123] In determining whether such a violation had occurred, the court applied the principle from Filártiga that courts must interpret international law not as it existed when the ATCA was enacted, but rather as it exists today. [FN124] This must be done, according to Filártiga, by consulting the writings of jurists, judicial decisions, and the general usage and practice of nations. [FN125] 1. International Law Binds Nonstate Actors. The court first examined whether a private, nonstate actor could violate the law of nations. In arguing affirmatively, the court noted that United States courts have applied international law to hold nonstate actors liable in the past. [FN126] Because this issue is rarely litigated, however, the case law is relatively scarce. The court first cited 150-year-old criminal cases to support its argument, looking to early cases in which the Supreme Court had held nonstate actors criminally liable for piracy on the grounds that pirates are hostis humani generis (enemy of all mankind). [FN127] The court next cited an executive branch opinion from a 1795 case in which the United States Attorney General declared that an American slave trader could be sued by British citizens for his participation in the plunder of British property off the coast of Sierra Leone. [FN128] The court then jumped forward in time to cite the executive branch's support for holding private individuals liable in the present case. [FN129] Finally, the court pointed out that the Restatement (Third) of Foreign Relations Law of the United States specifies that individuals may be liable for certain violations of international law such as piracy, slave trading, and aircraft hijacking. [FN130] The court concluded that because these violations may be committed by nonstate actors, international law must permit states to impose civil liability upon such nonstate actors. [FN131] The court rejected Karadzic's arguments that ATCA case law prevents its application to nonstate actors. Karadzic argued that because Filártiga had held that a government official may be liable under the ATCA, and because Tel-Oren had held that a private actor could not be liable under the ATCA, the general rule must be that a nonstate actor cannot be liable under the ATCA. [FN132] The court countered that Filártiga did not decide the issue because it dealt with a government official and therefore did not preclude holding a nonstate actor liable under the ATCA. [FN133] Distinguishing the Tel-Oren decision, however, was more difficult because the facts of Tel- Oren were similar to the facts of the case at bar. [FN134] The court therefore responded to this attempted analogy by narrowly construing the Tel-Oren holding, [FN135] claiming that Tel-Oren merely held that a nonstate actor could not be liable under the ATCA for torture, and that it did not decide whether a nonstate actor could be liable for other violations of international law. [FN136] The court next tackled Karadzic's argument that Congress must have intended an implicit state-action requirement in the ATCA. Karadzic divined this intent from Congress's express provision for a state-action requirement in the TVPA, which Congress had enacted to codify the developing ATCA case law. The court, however, turned to the TVPA's legislative history to find that Congress did not intend it to replace the ATCA because there may exist other violations of international law that may only be brought under the ATCA. [FN137] Thus, the court concluded that the state-action requirement does not necessarily apply to all violations of the law of nations. This did not end the court's inquiry, however, for it next had to determine whether the plaintiffs' specific allegations could constitute violations of international law when committed by nonstate actors.

9 31 GALR 281 Page 9 2. Specific Allegations. The court separated the allegations against Karadzic into three categories: (1) genocide, (2) war crimes, and (3) torture and summary execution. [FN138] The court had little trouble finding genocide a violation of international customary law, citing several treaties, conventions, and United Nations Resolutions condemning genocide. [FN139] The court found especially relevant the Genocide Convention Implementation Act of 1987, [FN140] which not only criminalized genocide in the United States, but also posed no state-action requirement for individual criminal liability. [FN141] Therefore, the court concluded that there must be an international norm allowing a nonstate actor to be held liable for genocide. [FN142] Similarly, the court concluded that an individual may be liable for war crimes regardless of whether he was a state actor under international customary law. [FN143] The court focused its analysis on the Geneva Conventions, [FN144] which codify the international definition of war crimes and provide that any party may be liable even if the war crimes are carried out in a conflict not of an international character. [FN145] The court interpreted this language as making the Geneva Conventions applicable to an insurgent military group regardless of whether the group is representative of any recognized nation. [FN146] Furthermore, the court noted that individuals were held liable for war crimes by the Nuremberg War Crimes Tribunal after World War II. [FN147] Thus the court found that Karadzic could be liable for war crimes under international law even if he had not acted under color of state law. With regard to torture and summary execution, however, the court held that the state-action requirement exists principally because Congress included it in the TVPA, which expressly applies to claims of torture and summary execution. [FN148] Yet, to the extent that such acts of torture and summary execution were conducted as part of a genocidal campaign or as war crimes, the court held that they would be covered under the preceding analysis and would therefore be actionable regardless of whether the perpetrator acted under color of state law. [FN149] Applying this analysis to the case at bar, the court held that Karadzic could be liable for genocide and war crimes regardless of whether he acted under color of state law. Karadzic could not be liable for torture and summary execution, however, unless the state-action requirement was met. Consequently, the court proceeded to examine whether the state-action requirement was satisfied in this case. 3. The State-Action Requirement. Because it had found a state-action requirement with respect to some of the plaintiffs' claims, the court held that the plaintiffs were entitled to prove whether Karadzic's conduct satisfied that requirement by proving either that Srpska qualified as a state or that Karadzic had acted in concert with Serbia. [FN150] On the question of Srpska's qualification as a state, the court did not use official recognition as the test for statehood; rather, the court endorsed the following definition from the Restatement (Third) of Foreign Relations Law: Under international law, 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. [FN151] The court observed that Srpska appeared to meet these requirements because Srpska is alleged to control defined territory, control populations within its power, and to have entered into agreements with other governments. It has a president, a legislature, and its own currency. [FN152] Thus, the court held that the plaintiffs were entitled to an opportunity to prove whether Srpska satisfied the Restatement's definition of statehood. [FN153] Alternatively, the court held that the plaintiffs could establish that Karadzic acted under color of state law inasmuch as his Bosnian-Serb forces received significant aid from the recognized nation of Serbia. The court held that such a relationship would independently satisfy the state-action requirement by analogizing to the color of law jurisprudence in civil rights litigation under 42 U.S.C. S [FN154] In the S 1983 context, when an individual acts in concert with state officials or with significant state aid, the court considers him a state actor. [FN155] The court felt that a similar analysis should apply to the case at bar such that if the plaintiffs could prove that Karadzic acted in concert with Serbia or with significant Serbian aid, he could be deemed a state actor under the TVPA. Therefore, the court held that the plaintiffs should be given the opportunity on remand to establish the requisite state action under either of the aforementioned theories. [FN156]

10 31 GALR 281 Page The Torture Victim Protection Act (TVPA). Next, the court discussed the TVPA in order to clarify how it fit into the subject matter jurisdiction analysis. The TVPA is not a jurisdictional statute, but merely a cause of action statute allowing an individual to sue a foreign government official for torture or extra-judicial killing. Jurisdictional authority came from either the ATCA or the general federal question jurisdiction statute. [FN157] In hinting that jurisdiction would also be available under the general federal question jurisdiction statute, the court reasoned that since the TVPA created a definitive cause of action, it can be considered a federal question. Because jurisdiction is available under the ATCA, however, the court declined to rule on this issue definitively. [FN158] b. karadzic's other defenses: lack of personal jurisdiction, improper service of process, and nonjusticiability [FN159] The court then moved on to whether personal jurisdiction and proper service of process existed. It declined to recognize any immunity from personal jurisdiction. In addition, the court noted that the U.N. Headquarters agreement did not provide Karadzic with protection from service of process because (1) he was not served within the district, (2) he was not a designated member of the United Nations, and (3) allowing service of process is not an impediment to transit to and from the United Nations. Finally, the court refused to recognize a federal common law immunity for United Nations invitees. [FN160] The court also ruled that this case was justiciable. Despite acknowledging the potentially sensitive matters of diplomacy, which are usually reserved to the jurisdiction of the political branches, the court found neither a separation of powers problem nor a Baker v. Carr political question problem. [FN161] In passing, the court also noted that no party identified a more suitable forum, so it did not dismiss the case under the doctrine of forum non conveniens. [FN162] V. Analysis Although the Second Circuit's ultimate disposition of the case was correct, its analysis and reasoning were flawed. It correctly held that the district court had subject matter jurisdiction under the ATCA, but it based that holding on its erroneous conclusion that the state-action requirement did not apply to Karadzic's conduct. Similarly, the court correctly remanded the case, but it should not have remanded the case to determine Srpska's statehood or the level of Serbian assistance. Rather, the court should have remanded the case for a proper consideration of forum non conveniens. a. the state-action requirement applies to genocide and war crimes In holding that the district court had subject matter jurisdiction under the ATCA, the Second Circuit refused to apply the fundamental principle, firmly embedded in federal law, that an individual may violate the law of nations only if he acts pursuant to the authority of a state. [FN163] Indeed, the Second Circuit flatly stated that it disagreed with the proposition that the law of nations binds only states. [FN164] In so concluding, however, the court ignored the principles established in modern ATCA case law [FN165] and the implicit message Congress sent when it included the state-action requirement in the TVPA. [FN166] Instead, the court supported its conclusion by looking to ancient piracy cases and the Restatement of Foreign Relations Law, and by resorting to a narrow reading of the Filártiga [FN167] and Tel-Oren [FN168] cases. The court first cited several early cases in which the Supreme Court held individuals criminally liable for piracy to support its proposition that international law binds nonstate actors. [FN169] None of these cases, however, was

11 31 GALR 281 Page 11 brought under the ATCA. Moreover, courts have long viewed piracy as an exception to the general rule that international law is not binding on individuals because piracy, by its nature, is not committed within the territory of any sovereign; rather, it is committed on the high seas by transient perpetrators and therefore requires that all nations have jurisdiction over the pirate when he is caught. [FN170] The acts at issue in Kadic, by contrast, all occurred within the territorial boundaries of Bosnia and therefore are subject to Bosnian municipal law. Unlike piracy, these acts are capable of being punished in the territory within which they were committed. Using the treatment of pirates to justify applications of the ATCA to an individual nonstate actor requires a quantum leap in logic. Similarly, the court relied on the principle of universal jurisdiction set forth in the Restatement of Foreign Relations Law as evidence that international law binds nonstate actors. [FN171] The court observed that the Restatement provides for universal jurisdiction over a few especially egregious crimes--some of which, like piracy and aircraft hijacking, are capable of being committed by nonstate actors. [FN172] Because the Restatement also includes genocide and war crimes among these offenses, the court concluded that genocide and war crimes must also be punishable if committed by nonstate actors. This conclusion, however, does not necessarily follow; indeed, the court ignored the unique nature of piracy and hijacking crimes. As mentioned above, piracy is by definition an exception to the general rule that international law does not bind nonstate actors because it is committed in international waters and not within the boundaries of any particular sovereign. This same rationale applies to hijacking when it occurs in international airspace. By contrast, the acts alleged in Kadic--genocide, torture, and war crimes--do not share this characteristic. When committed by a private actor, these crimes are not difficult to prosecute within the jurisdiction in which they were committed. Moreover, these crimes become an international concern only when committed or condoned by a state. Thus, the state-action requirement should apply to genocide, torture, and war crimes. The Second Circuit also misconstrued the Filártiga and Tel-Oren cases so as not to conflict with its conclusion that the law of nations binds nonstate actors. The court flatly stated that nothing in Filártiga purports to preclude such a result. [FN173] This assertion is misleading, however, because the Filártiga opinion actually contains a great deal of support for the proposition that international law binds only state actors. For instance, Judge Kaufman described the international norm prohibiting torture as follows: (T)here are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state's power to torture persons held in its custody.... (A) state's treatment of its own citizens is a matter of international concern. [FN174] Judge Kaufman stressed that the universal criminalization of certain types of conduct does not necessarily make such conduct a violation of international law. In order for there to be a violation of an international norm, there must be, in addition to universal condemnation, international concern: (T)he mere fact that every nation's municipal law may prohibit theft does not incorporate the Eighth Commandment, 'Thou Shalt not steal'... (into) the law of nations. It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern,... that a wrong generally recognized becomes an international law violation within the meaning of the statute. [FN175] Additionally, Judge Kaufman accepted Judge Friendly's requirement that in order to violate the law of nations, the offending conduct must affect relations with a foreign state: (A) violation of the law of nations arises only when there has been a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state and (b) used by those states for their common good and/or in dealings inter se. [FN176] These passages clearly show that the Filártiga court recognized that international law is not binding on private individuals. Moreover, any doubts about this conclusion were laid to rest by Judge Edwards's opinion in Tel-Oren v. Libyan Arab Republic. [FN177]

12 31 GALR 281 Page 12 The Second Circuit tried to downplay Tel-Oren by arguing that the Tel-Oren court merely found that torture required state action to be a violation of international law; it said nothing about genocide and war crimes. [FN178] Judge Edwards, however, clearly stated, I adhere to the legal principles established in Filártiga.... I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law. [FN179] Judge Edwards made no attempt to limit this holding to torture; in fact, the Tel-Oren case involved not only claims of torture, but many other human rights violations as well, including terrorism, genocide, war crimes, and hostage taking. [FN180] Indeed, much of the conduct alleged in Tel-Oren is identical to the conduct alleged in Kadic. The Second Circuit's narrow interpretation of Tel-Oren thus conveniently avoided this unfavorable similarity. The court next had to address the implicit congressional approval of the state-action requirement arising from its codification in the TVPA. The Second Circuit argued that Congress did not approve an overarching state-action requirement in international law when it enacted the TVPA, but merely approved the requirement with respect to torture and extrajudicial killing. [FN181] The court, however, failed to explain why torture and extrajudicial killing are so different from other violations of international law that they should require state action and other violations should not. As discussed previously, two principles underlie the TVPA's state-action requirement: (1) the axiom that international law binds only states, and (2) the policy decision to limit potential TVPA defendants to state actors. [FN182] These principles are equally applicable to other violations of international law such as genocide and war crimes. The court did not explain why the state-action requirement should not apply to these other violations. Nevertheless, it argued that international law allows nonstate actors to be liable for committing genocide and war crimes. In arguing that genocide is a violation of international law regardless of whether the perpetrator acts under color of state law, the court confused the obligations incurred by a state in signing a treaty with violations of the law of nations. The court argued that because the United States ratified the Genocide Convention, [FN183] which defines genocide as a crime regardless of whether the defendant was a state actor, there should be no state-action requirement for claims of genocide brought under the ATCA. [FN184] The Genocide Convention and the ATCA, however, are separate and distinct bodies of law. The Genocide Convention defined genocide in order to provide a guideline for states to criminalize it under their municipal law. Liability under the ATCA, by contrast, requires a violation of the law of nations, not a violation of municipal law. By referring to the Genocide Convention to support its argument, the court was juxtaposing international law with municipal law. In addition, the Genocide Convention obligates a state to punish only those individuals who commit genocide within its borders; it does not obligate a state to punish individuals who commit genocide abroad. [FN185] Thus, a violation of this treaty does not occur when an individual commits genocide; rather, a violation occurs either when a state fails to criminalize genocide within its municipal law or when a state itself commits genocide. [FN186] The treaty obligates states, not individuals. The United States complied with this treaty by codifying the crime of genocide. [FN187] Congress, however, limited the scope of the crime to acts committed within the United States borders or by a national of the United States. [FN188] Therefore, the statute would not apply to Karadzic's acts because he committed them outside the United States borders, and he is not a national of the United States. Moreover, the statute provides no civil cause of action for genocide. Thus, even if Karadzic's conduct fell within the statutory definition of genocide, the plaintiffs' claims would not be actionable under the ATCA. Indeed, the Second Circuit ignored the fact that Congress could have provided for a cause of action but declined to do so. [FN189] Therefore, the court erred in concluding that genocide may be actionable under the ATCA when committed by a nonstate actor. The Second Circuit's conclusion that a nonstate actor may be liable for war crimes under the ATCA is hamstrung by these same problems. The court argued that because individuals were held liable for war crimes at the Nuremberg trials, a nonstate actor may therefore be liable for war crimes generally. [FN190] This argument is without merit for two reasons. First, the court failed to acknowledge that every defendant at the Nuremberg trials