International Law and Torture The American Court System

U.S. Alien Tort Claims Act, l789 The district courts shall have original jurisdiction of any civil action by an alien to a tort only, committed in violation of the law of nations or a treaty of the United States. -- origins in constitutional provisions for a judicial branch -- lay dormant for nearly 190 years

Torture Victim Protection Act, 1992 (U.S. law) Provides federal jurisdiction and a cause for action for victims of torture (United States citizens and aliens alike), regardless of where committed or the citizenship of victims or perpetrators

U.N.Convention Against Torture and other Cruel, Inhuman and Degrading Punishment, 1984 [torture is]…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he…has (allegedly)committed…or intimidating or coercing him…when such pain in inflicted by or at the instigation of…a public official or …person acting in an official capacity. Each state party shall take effective…measurement to prevent acts of torture in any territory under its jurisdiction.

Torture Convention (cont.) -- no exceptional circumstances whatsoever, whether a state of war or internal instability or any other public emergency, may be invoked as a justification of torture. -- any order from a superior officer or public authority may not be invoked as a justification of torture. -- no State Party shall expel, return (“refouler”) or extradite a person to another state where there are substantial ground for believing he would be subject to torture [taking into account consistent patterns of gross or flagrant violations of human rights.] Universal jurisdiction: state must either prosecute or extradite accused to a state which will prosecute

Additional International Laws applied to torture cases: Covenant on Civil and Political Rights (in effect, l976) Geneva Conventions (1949 revised) Crimes Against Humanity (Rome Statute of the ICC; Charters, International Military Tribunals, Nuremberg and Tokyo)

Court Cases under the Alien Tort Act: Dolly Filártiga and Joel Filártiga v. Américo Norberto Peña-Irala, No. l9l, docket , argued October 16, l979, decided June 30, l980 (U.S. Court of Appeals Second Circuit). Precedent-setting case. José Francisco Sosa v. Humberto Alverez-Machain, Nos , , argued March 30, 2004, decided June 29, 2004 (Supreme Court)

Cases (cont.) Juan Romagoza Arce, Neris Gonzales, Carlos Mauricio, and Jorge Montes v. Jose Guillermo Garcia and Carlos Eugenio Vides Casanova, no CIV-Hurley second amended complaint for Torture, Crimes against Humanity, Cruel, Inhuman or Degrading Punishment; and Arbitrary Detention, decided by jury July February 2005 the 11 th Circuit Court of Appeals overturned the verdict (had not fallen in the 10 year statute of limitations requirement) January 5, 2006 the Court upheld the verdict in its entirety, ruling that “extraordinary circumstances” may require equitable tolling so long as the perpetrating regime remains in power (extending the statute) which intimidates witnesses and the quest for justice

Alien Tort Act (applied to multinational corporations Doe v Unocal (in Burma), settled March Held transnational corporation accountable for perpetration of and participation in human rights abuse (forced labor in the construction of its Yadana gas pipeline). Khulomani et.al., v Barclays, charging corporations with complicity in the South African apartheid system (on appeal; good chance of success because of the core principle of customary international law: liability “for knowing practical assistance or encouragement which has a substantial effect on the perpetration of a crime.”