National Courts’ Universal Jurisdiction

This note seeks to explore the universal jurisdiction of national courts over crimes against human rights. One observes a tendency in some states to claim universal jurisdiction over crimes against human rights. In any case, here one must manifestly distinguish between whether one is discussing criminal or non-criminal law jurisdiction (torts or other civil procedures for compensation for damages). In principle, under international law, universal jurisdiction is not limited to criminal law; states can offer remedies to victims of crimes against universally accepted interests.

Filartiga v. Peña-Irala

Applying the concept of universal jurisdiction to the national courts, the case of Filartiga v. Peña-Irala (1980) offers an insight. In this case, a citizen of Paraguay filed a suit in the United States against a former Paraguayan police officer who was an illegal resident in New York. The suit was filed for the torture and death of the plaintiff’s brother by acts committed in Paraguay three years ago. The US Court of Appeals for the Second Circuit found that ‘for purposes of civil liability, the torturer has become… like the pirate and slave trader before him’. This, in other words, translates to an enemy of mankind.

The Court held that torture cannot come under the veil of official authority or immunity. Irrespective of it being a state function, it remains a violation of international law. The Court further stated that torturers discovered in the United States can be sued before an American court, regardless of where the act occurred. The American courts established their jurisdiction using the US Alien Tort Statute. The Statute enables the district court’s jurisdiction over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. The decision was hailed as a milestone in the human liberties policy of President Carter’s human rights foreign policy. At any rate, whether torture has become a crime subject to universal jurisdiction under customary international law, has remained uncertain.

Siderman Case

The US Court of Appeals decision in the Siderman case on 22 May 1992 also demands brief discussion. The case demonstrates the close interaction between the concept of ‘jurisdiction’ and the concept of ‘state immunity’ exempting a foreign state from the judicial power of the courts of another state. In 1982, the Siderman family sued Argentina for the torture of José Siderman and the expropriation of the family’s property, which had taken place immediately after the military seized power in 1976. As far as the torture claim was concerned, in 1984 the lower District Court for the Central District of California awarded the family some US$2.7 million damages in a default judgment. Argentina did not take part in the proceedings.

In 1985, however, the District Court vacated the default judgment and dismissed the action after Argentina had claimed immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA). While a foreign state can invoke its immunity under the FSIA, it cannot do so in all circumstances, because the Act lays down certain exceptions. The US Court of Appeals reversed the decision of the District Court in 1992 and sent the case back for further proceedings because jurisdiction existed prima facie (meaning that the burden of proof lay on Argentina to show by a preponderance of the evidence that none of the exceptions to immunity, laid down in the FSIA, apply).

In its reasoning, the Court of Appeals extensively tried to demonstrate that the prohibition of torture has the nature of jus cogens, but given a pertinent ruling of the higher US Supreme Court, which it had to follow, the Court of Appeals had no choice but to find that jurisdiction overcoming the immunity defense raised by Argentina could neither be based upon a general exception of the ‘violation of jus cogens’, nor upon the existing treaty exception of Section 1604 FSIA. In short, because Argentina was seeking the assistance of US courts in pressing criminal charges against José Siderman. This was seen as sufficient evidence for an implied waiver of immunity by Argentina in the case brought by the Siderman family.

Summary

The aforementioned cases illustrate the general legal difficulties in human rights litigation in the United States in connection with foreign sovereign immunity. Because of the problems individual victims face under US foreign sovereign immunity law to bring suits against foreign states for gross violations of human rights, in recent years several cases have been filed directly against individuals for such acts, often committed in the exercise of some form of governmental authority. One can, for example, refer to the suits filed against the Argentinian General Carlos Guillermo Suarez-Masonor the Serbian leader Dr. Karadzic.

In response to these difficulties, on 12 March 1992, the US Congress adopted the Torture Victim Protection Act of 1991. The Act allows victims to file claims for damages in a civil action against individuals who, ‘under actual or apparent authority, or color of law, of any foreign nation’, subjects an individual to torture or extrajudicial killing. It remains to be seen what this means in actual judicial practice concerning foreign sovereign immunity and the related ‘act of state doctrine’ if such acts are also clearly attributable to a foreign government.