Extracurricular International Criminal Law

By | April 9, 2018

İnternational criminal law review 16 (2016) 412-447 Domestic criminal law informs the register of international criminal law, whether formally through the development of general principles of law or informally through experience and analogy. Reciprocally, international criminal law also informs the register of domestic criminal law, whether formally through incorporation of treaty and custom or, once again, informally through experience and analogy. Circulation thereby arises within the curricular sphere of penal responsibility.

Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to municipal legal practice, might international criminal law cast a somewhat longer shadow, travel a bit farther, or leave a somewhat haler legacy? This article assesses the jurisprudential impact of international criminal courts and tribunals on domestic civil litigation in the United States for gross human rights abuses, specifically in Alien Tort Statute (ats)1 claims brought in us federal courts. The ats allows victims of human rights abuses to file tortbased lawsuits for violations of the laws of nations (a phrase taken to mean customary international law).

The analysis begins with the International Criminal Tribunal for Rwanda (ictr). This article undertakes a search of references to ictr case-law and materials in ats judgments. It identifies a set of ats judgments containing such references. Overwhelmingly, these judgments also include references to the work product of other international criminal courts and tribunals. us judges who cite to ictr work product to determine the rule of application in an ats dispute frequently invoke the case-law and materials of the International Criminal Tribunal for the former Yugoslavia (icty), International Criminal Court (icc), the International Military Tribunal at Nuremberg (imt), the American Military Tribunal at Nuremberg (amt), and the International Criminal Court (icc). Hence, this article references these cases and materials as well. The entangled nature of these citations suggests that us judges perceive international courts and tribunals as constituting some form of system.

This article therefore interrogates the migration of substantive criminal law from the public international domain to private municipal tort law. This article abstains from endorsing or challenging the desirability of tort-based claims or international criminal tribunals as modalities of post-conflict accountability. Its goal, rather, is to investigate judicial method and the role of transnational legal migrations there in.

Extracurricular International Criminal Law

Assuredly, the ats retains key aspects of penal and international law2 in
that the tort claim hinges upon finding a breach of a customary international
criminal norm. What is more: governmental and political entities, notably the
us State Department, may express firm opinions regarding ongoing litigation –
for example, how it interfaces with international comity – and may actively
share that opinion with the deciding judges. On the other hand, ats litigation
departs from international criminal proceedings when it comes to venue (civil
litigation at the national level), remedy (monetary damages), burden of proof
(balance of probabilities), goals (compensation rather than incarceration),
standing (private plaintiffs), actionability (only definable, universal, and obligatory
customary international norms are enforceable), and management
(national judges in courts of general jurisdiction).

Ats verdicts are infrequently enforced. Victims rarely collect. Individual
defendants often are impecunious or outside the jurisdiction. At times, to be
sure, cases are settled and compensation will pass hands as part of that settlement.
That said, ats litigation triggers expressive effects. It ventilates obscured
tragedies and empowers victims who initiate claims. ats litigation also educates
the public. The judgment of the Second Circuit Court of Appeals in Kadić
v. Karadžić, for example, widely disseminated the horrors of Bosnian rape
camps and endemic gender-based violence at a time when the icty was still in
its infancy.3

This article does not deliver quantitative or empirical results beyond the
most rudimentary tabulations. This article simply identifies cases in which us
federal judges adjudicating ats disputes have relied upon ictr cases and ictr
materials, and discusses how and for which purposes these materials – along
with those of other international institutions – have been received. The
research is best described as qualitative. These modest research findings nonetheless
evoke a fascinating story of legal transplant, migration, digestion, legacy,
and professionalism – on this latter point, the relationship of national
judges with international law.
In light of the sharply limited capacity of international criminal courts
and tribunals, domestic tort claims as avenues for redress of systematic
human rights abuses will likely grow in number. The experiences of us courts

of general jurisdiction as ‘receivers’ of international criminal law reveal broader
patterns of transnational legal migration and a largely unanticipated legacy of
international criminal courts and tribunals. Distortions may nonetheless arise
when international norms migrate into legal practices at the national level, in
particular, when they do so in cognate legal regimes. These migrations constitute
national practices indicative of ‘comparative international law’, namely,
that international legal norms may take shape differently among, and within,
various national jurisdictions. While international criminal lawyers may welcome
the broad diffusion of international norms, including extracurricularly
from the criminal to civil context in a rich array of venues, concerns emerge
should the content of the norms fragment and, thereby, weaken international
law’s purported universality.

The us experience is thereby instructive in terms
of striking the appropriate relationship between national courts and international
law. Should national courts serve as dispassionate law enforcers, as
translators of law, or as engaged law creators? Should international judges be
mindful of the at times unforeseen afterlife of the jurisprudence they create?
Obversely, the us experience also raises questions as to whether the specialised,
and at times inconsistent, work-product of the international criminal
courts and tribunals is even suitable for broader dissemination and incorporation
at the national level.

Part 1 introduces the ats and its legal elements. ats litigation remains in a
fluid state. Hence, this introduction necessitates a discussion of the jurisdictional
and extraterritorial concerns that infuse very recent ats litigation. This
introduction thereby provides a flavour of the kinds of ats claims that may
still be brought.

Part 2 sets out the research methods and some preliminary
findings. Part 3 discusses substantive aspects of citation by us judges to ictr
materials. Part 4 places these citations within the broader framework of judicial
recourse to icty, icc, imt, and amt materials in the adjudication of ats
disputes. At times, us judges replay amongst themselves debates that roil
international judges and institutions regarding the correct interpretation of a
point of substantive criminal law. Part 5 concludes.

The Alien Tort Statute, its Dénouement, and its Resilience

The ats dates from the First Congress (1789). It is a succinct instrument that
reads as follows: ‘The district courts shall have original jurisdiction of 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 ats has limited legislative history. Its brevity
nonetheless belies the tremendous jurisprudential complexity it has sired.

The ats lay largely dormant for two centuries. Beginning in 1980 with the
Second Circuit Court of Appeals’ judgment in the Filártiga litigation, however,
plaintiffs turned to the ats to pursue redress in us courts for atrocity crimes.4
Plaintiffs did so in a broad variety of factual circumstances, including when
allegations involved abuses committed outside the United States by non-us
nationals against non-us nationals. By definition, plaintiffs pursuing ats
claims will be foreign nationals. In many instances, however, plaintiffs present
some connection to the United States, either because they are physically present
in, had moved to, or are non-residents living in the us. These somewhat
more nuanced realities contrast with essentialised depictions of ats claims as
‘foreign-cubed’, rooted in pure universal civil jurisdiction, and utterly dissociated
from the United States.

The initiation by plaintiffs, often times with the support of sophisticated
activists, of ats litigation has obliged us courts to determine whether a broad
array of impugned acts actually constitute violations of the laws of nations. In
its 2004 opinion in the Sosa case, the us Supreme Court ruled that, while the
identification of substantive causes of action under the ats should proceed
cautiously, the statutory remedy is not to be limited only to those violations of
the laws of nations acknowledged in 1789.5 Rather, the remedy covers violations
extant today that bear comparable universality and specificity to those
that had been recognised in 1789. Courts are to invigilate this process of transhistorical
analysis. Actionable contemporary norms must be of sufficiently
definite, obligatory, mutual, and universal character. Although the ‘law of
nations’ is taken by us courts to mean customary international law, the importation
of these criteria qualifies general understandings of the elements of customary
international law. While customary international law constitutes the
rule of decision to determine a substantive violation of the ats, another debate
has erupted in ats jurisprudence: whether customary international law or
domestic us law ought to serve as the rule of decision in determining the
modes by which an alleged tortfeasor becomes implicated in the tortious conduct.
Overall, the tendency appears to be that customary international law
should govern this latter determination as well.

A first generation of ats claims pursued individuals based on their alleged
direct involvement in atrocity crimes. A second wave that began in the 1990’s

targeted corporations on theories of aiding and abetting in the commission of
atrocity crimes. This latter wave proved more controversial jurisprudentially
(i.e. regarding modes of liability) as well as politically (i.e. risking a chilling
effect on investment in developing nations, dragging us courts into disputes
that lacked connections with the jurisdiction, and interfering with the conduct
of us foreign relations).

These controversies suffused the Kiobel case, decided in April 2013 on jurisdictional
grounds regarding the extraterritorial application of us statutes.
Here, the us Supreme Court sharply curtailed the scope of future ats claims
by requiring proof of a compelling nexus with the United States:
[E]ven where the claims touch and concern the territory of the United
States, they must do so with sufficient force to displace the presumption
against extraterritorial application. Corporations are often present in
many countries, and it would reach too far to say that mere corporate
presence suffices.6

These concerns have animated other recent us Supreme Court cases in divergent
areas of the law, leading to a general reticence to exercise jurisdiction over disputes
that lack a compelling nexus with the United States.7 In this sense, us
courts can be seen to respond to the emergent transnationalisation of disputes by
retrenching the salience of geography, nationality, sovereignty, and territoriality.

The facts of Kiobel involved Nigerian citizens, albeit long-time legal residents
of the United States on asylum grounds, who pleaded that Dutch, British,
and Nigerian oil exploration and extraction corporations aided and abetted
the Nigerian government in committing systemic human rights violations during
the 1990s. All nine judges dismissed the case, holding that the factual context
was too remote from the United States to justify allowing the claim to
continue. Chief Justice Roberts – writing for a five justice majority – robustly
applied the presumption against extraterritoriality to the ats. Justice Kennedy.

Following Kiobel, the Second Circuit in August 2013 restricted the application
of the ats in a case involving investment in apartheid-era South Africa.10

The Second Circuit held that Kiobel barred claims against Ford, Daimler, and
ibm (part of the well-known Khulumani litigation). This litigation initially
targeted fifty companies for allegedly aiding and abetting the apartheid
regime. Plaintiffs argued inter alia that ibm and Ford aided the apartheid government
and armed forces by providing software and machinery, including
computer systems that categorised the South African population by race.
In April 2014, on remand to the district court, Judge Scheindlin permitted
causes of action to continue against ibm and Ford (companies incorporated in
the United States). In August 2014, however, Judge Scheindlin denied the plaintiffs’
motion to amend their complaint, thus ending the litigation. She found
that the claims did not sufficiently touch and concern the territory of the
United States.

In October 2014, the Second Circuit nonetheless fashioned a more nuanced
approach in a case (Mastafa v. Chevron and Banque nationale de Paris (bnp))
involving claims arising out of acts of atrocity committed in Iraq during
the Saddam Hussein regime.11 The Mastafa litigation was initiated by Iraqi
women who were victims of torture by agents of the Hussein government or
whose husbands were the victims of such torture. Plaintiffs, some of whom
had become us citizens or permanent residents, claimed that defendant corporations
aided and abetted these abuses by paying the Hussein regime kickbacks
related to the Oil-for-Food Programme. It was alleged these kick-backs
eventually served to finance acts of torture. In Mastafa, the Second Circuit
Court of Appeals ruled that the alleged human rights abuses and the theory of
aiding and abetting could be cognisably pleaded under the ats. The Second
Circuit also importantly ruled that the relevant conduct sufficiently touched

and concerned the United States, thus squaring the facts at hand with the
Kiobel test.12 It specified:
Chevron’s oil purchases, financing of oil purchases, and delivery of oil to
another u.s. company, all within the United States; and bnp’s use of
a New York escrow account and New York based ‘financing arrangements’
. . . facilitated that regime’s violations of the law of nations, namely war
crimes, genocide and other crimes against humanity.13
In another case decided in 2013, however, the Second Circuit dismissed an ats
claim because all of the conduct set forth in the complaint occurred in
Bangladesh.14 Other Circuit Courts of Appeal have also halted ats litigation
owing to extraterritorial concerns. A panel of three judges on the Ninth Circuit,
for instance, applied Kiobel to dismiss a claim that two us-headquartered corporations
were complicit in the 1998 bombing of a Colombian village by members
of the Colombian air force.15 The Eleventh Circuit dismissed a claim
against Chiquita, a us corporation, alleging that Chiquita supported Colombian
paramilitary forces responsible for torturing and killing banana-plantation
workers, union members, and social activists.16

That said, in yet another case, the Ninth Circuit permitted plaintiffs to
amend their complaint to meet the Kiobel ‘touch and concern’ standard.17
A District of Columbia district court pursued a similar course of action in a
long-standing dispute regarding injuries allegedly inflicted upon plaintiffs by

Indonesian soldiers employed by corporate defendants to provide security at a
natural gas facility in Aceh.18 In an exhaustive analysis, this district court
emphasised that the extraterritoriality bar will be displaced when the claims
sufficiently touch and concern the United States because of: (1) substantial and
specific domestic conduct relevant to the ats claims, (2) us citizenship or corporate
status of the defendant, and (3) the presence of important us national
interests.19 Applying this test to the facts at hand, the presiding judge ascribed
considerable probative value to the allegations that corporate executives in the
us received briefings on rape, torture, unlawful detention, assault, and killings
committed in Aceh; that decision-making was us-based; that the defendant
was incorporated in the us with a principal place of business in the us; and
that security personnel were committing violations through the use of defendant’s
equipment.

The Fourth Circuit in Al-Shimari permitted claims to proceed against us
defense contractor caci for abuse and detention at Abu Ghraib.20 The Fourth
Circuit found that ats claims related to the alleged torture at Abu Ghraib
sufficiently touched and concerned the United States because of the defendant
corporation’s us status, the us citizenship of the defendant’s employees,
defendant’s status as a contractor of the us government, the location
where contracts were made, and allegations that the wrongful conduct in
question occurred domestically in the United States (i.e. approving, encouraging,
and covering up the alleged torture). In a district court case from the

District of Columbia, moreover, the presumption against extraterritoriality
was rebutted when a foreign defendant bombed a us embassy in Kenya, acts in
furtherance of the terrorist plan took place in the us, and the violence was
intentionally directed against the us government and employees.21 Another
district court case from New Jersey involving terrorism also survived a dismissal
challenge, even though the alleged effects of the violations of the law of
nations were entirely felt in Sri Lanka.22 In yet another dispute – the Lively
case  – a United States district court in Massachusetts denied a summary judgment motion to dismiss in September 2013.23 This case involves an ats claim against Scott Lively, a pastor, brought by a Ugandan non-governmental
organisation, Sexual Minorities Uganda, alleging violations of the laws of
nations regarding the infliction of persecution against lgtbi persons in
Uganda. Lively, a us citizen, allegedly fomented and attempted to foment these
persecutory acts. In this case, the district court distinguished the facts from
Kiobel because the defendant was an American citizen residing within his
venue and the alleged tortious acts took place to a substantial degree within the
United States over many years with only ‘infrequent actual visits’ to Uganda.24
What is the bottom line, then, when it comes to the ats and extraterritoriality
in the wake of Kiobel? Clearly, the range of claims that can be brought has
narrowed. An ats case cannot proceed if the asserted wrongful conduct has
entirely occurred outside of the United States. A defendant’s us citizenship (or
mere corporate presence), while relevant, is not on its own dispositive to satisfy
the requirement that the litigation sufficiently touches and concerns the
United States. As is evident from the case-law, however, it is far too early to
sound the death-knell of ats litigation. Claims will continue, in particular,
where the underlying conduct (including manufacture, financing, managing,
or developing) occurs in the United States, where the conduct was intended to
impact the United States, and where the United States may be harbouring an
alleged wrongdoer.

These questions, while an essential introduction to the subject matter, also
stray from the raison d’être of this article. Many years of ats litigation offer a
fascinating laboratory into the deployment of international criminal judgments
and materials in domestic civil litigation for gross human rights abuses.
It is towards this laboratory that this article now turns.

International Materials in ats Litigation: Sources and Research
Methods

ictr case-law and materials are understood to mean: (1) judicial decisions of
both the ictr Trial Chambers and the Appeals Chamber; and (2) the ictr Statute itself. A search of us federal judgments was initiated through the

WestlawNext database platform in the summer of 2013.25 This search generated
an opening sample baseline of federal judgments.26 Judgments decided since
2013 were subsequently integrated into the analysis, albeit on a piecemeal
basis, in an effort to qualitatively assess the case law. A second database search
was undertaken in the summer of 2015 to consolidate the findings.27 The initial
set of federal judgments generated by the search for references to ictr cases
and materials in ats litigation was notable in the sense that, with only one
exception, each of the federal judgments also contained a reference to the
materials of one of the icty or the Nuremberg-era tribunals, often times both,
and also at times to the materials of other international criminal courts or tribunals
(icc, for example).

One immediate observation is that ictr case-law and materials appear only
in a modest number of ats cases. A number of caveats, however, pertain to this
observation. Many cases that pop up in a search for ats may only involve incidental
reference thereto without necessarily involving litigation thereunder;
others may involve strictly extraterritorial questions, to which the substantive
law of the international tribunals is not germane, or invocation of forum non
conveniens or political question doctrine (same irrelevance).28 Since ats

claims began in earnest in the early 1980’s, over a decade of ats litigation preceded
the creation of the ictr and nearly two decades of this litigation took
place prior to consistently produced ictr case-law. Finally, it is plausible that
a percentage of results yielded by the acronym ats (or atca) involve totally
unrelated subject-matter.

Citations to the case-law and materials of international criminal courts and
tribunals in ats litigation may be modest in number but they are neither sporadic
nor intermittent. Nor are they thoughtless. International case-law and
materials are deliberately invoked when it comes to determining the content
of the law of nations. A district court in the District of Columbia, for example,
described the ictr and icty as ‘authoritative’ on the subject of interpreting
customary international law.29 A decade earlier, another district court judge
had held:

United States courts that have been required to describe elements of the
‘law of nations’ or other international law concepts have frequently
turned to the decisions of the International Criminal Tribunals for the
Former Yugoslavia and Rwanda, and have, with apparently only one
exception, approved of such decisions.30
us federal courts appear to consider the case-law and materials of international
criminal courts and tribunals alternately as sources of international
law31 or as evidence of customary international law.32 Although these material help identify and legitimate a rule of decision, this vacillation among us judges generates some doctrinal confusion. Furthermore, those courts that view these
materials as sources hedge as to whether these are primary or subsidiary
sources pursuant to Article 38 of the Statute of the International Court of
Justice. The most representative way to typologise the approach of us federal
judges, however, is that they turn to international case-law and materials
(notably ictr, icty, Nuremberg-era tribunals, and the icc) as authoritative
evidence of the existence and content of a customary rule (in other words, of
the state of customary international law). To be sure, this approach is not without
exception. For example, one Circuit Court of Appeals judge in 2007 chastised
reliance on the ‘unorthodox practices of the icty and ictr’, reasoning
that judgments of the ad hoc tribunals were ‘useless precedent on the issue of
liability of private parties for violations of customary international law’.33
Instead, this judge ruled that the Rome Statute (at the time signed by 139 countries
and ratified by 105) and amt cases were appropriate authorities to demonstrate
the content of customary international law, in this particular case
regarding elements of aiding and abetting liability.

The fact that the judge in
question devoted many pages of detailed text justifying his position indicates
the level of seriousness with which the intersection of the work product of
international criminal law institutions and national private law frameworks is
taken in the context of ats litigation.

For the most part, references to ictr materials in domestic ats litigation
primarily reinforce or confirm the existence of certain substantive rules of customary
international law. At times, however, these references are jurisgenerative
in that they establish new law, applicable directly at the national level,
which may in fact be more progressive than the extant rules as generally
understood.

For example, Lively references ictr judgments (and other international
sources) to support the proposition that an orchestrated campaign of
intimidation of lgbti persons constitutes persecution as a crime against
humanity.34 A review of ats jurisprudence reveals the tendency of certain us
judges to tread cautiously with regard to the content of customary international
law while other judges proceed quite audaciously. This observation gestures
toward the attitudinal diversity among us federal judges.
In a number of instances, inconsistent treatment of the same putative
rule arises among the differing judicial Circuits. This fragmentation may
vex outside readers, but it actually is somewhat uneventful within the us federal
system insofar as the different Circuits can proceed in their own directions.
In situations of serious Circuit splits, however, the us Supreme Court
steps in to resolve such différends. That said, this variability among judges and
Circuits with regard to content and meaning might pose a sui generis set of
challenges when it comes to international law as a rule of decision in light of
international law’s universalising aspirations as well as the ongoing relevance
of positivistic notions of state consent.

This variability may be problematic
when it occurs within a national jurisdiction; as it may be problematic when it
occurs as among different national jurisdictions. In both instances, courts,
either within or among national systems, may seek to create international law
rather than simply apply international law. Such juridical tendencies earned
the scorn of Lord Hoffman in the Jones v. Saudi Arabia case, which involved a
claim of torture brought in the United Kingdom and the applicability inter alia
of immunities to international crimes. In discussing jurisprudence from Italy
that dismissed immunities as a lower-order value, Lord Hoffman warned:
It is not for a national court to ‘develop’ international law by unilaterally
adopting a version of that law which, however desirable, forward-looking
and reflective of values it may be, is simply not accepted by other states.3

The fact that many ats cases are initially adjudicated on motions to dismiss or
summary judgment motions – in which the facts are taken in the most favourable
fashion for the plaintiffs and the legal standard of pleading is one of plausibility36
– may encourage a slightly more purposive or elastic view of the
content of customary international law. Many ats judgments also arise on
motions for leave to amend existing complaints. If and when matters go to
trial, it is readily foreseeable that more restrictive interpretations would
emerge.
A number of ats cases involve the same disputes that sinuously wind their
way up the judicial system, then are remanded back pursuant to interlocutory
motions, only to wend their way up again. Litigation rotates around some epic
claims: for example, Khulumani (South Africa), Mujica (Colombia), Doe v.
Exxon (Indonesia), Doe v. Nestle (Côte d’Ivoire), Presbyterian Church (Sudan),
and Kiobel (Nigeria). These disputes last for many years. The findings presented
in this article include references to international materials in the same dispute
as it works its way up and down varying trial and appellate levels of the federal
judicial system, and then following appeal once again to remand at the trial
level. In these situations, each individual court’s discussion is included separately.

This article discusses judgments even if subsequently overturned on
points of law by an appellate circuit court. What is more, en banc appellate
decisions may overturn (and vacate) decisions previously rendered by threemember
appellate panels: in these instances, which may occur in ideologically
fraught Circuits, this article includes both the initial appellate decision and the
en banc decision. This article also discusses citations in dissenting opinions.
The bottom line is to offer a qualitative snapshot of the various ways us judges
rely on ictr materials specifically and international materials generally.

Another complicating issue arises when international materials inform
an initial determination of a substantive rule of customary international law,
but then the us court opinion that effected the initial international citation
itself becomes the ongoing point of reference to justify the existence of the
substantive rule. In other words, court X comes to conclusion Y based on international
materials. Then court A cites to conclusion Y, justifying the decision based only on the precedent of court X instead of the international materials.
Here, international law enters the domestic legal lexicon, but then sheds its
international provenance. In a telling trend, several of the more recent ats
appellate opinions cite less frequently to international materials than had
been the case in earlier opinions. In us courts, apparently, the legitimacy of a
Circuit Court of Appeals citation (or even that of a district court) on a point of
law tends to exceed what may be seen as the more risqué reliance on international
sources, although international sources may have generated the initial
substantive rule. In other national jurisdictions, a contrario, citation to an
international source may be seen as conferring greater legitimacy or credibility
to the assertion of the existence or content of a specific substantive rule of
customary international law.

Which ictr materials receive the most attention? The ictr Statute is frequently
cited. Citations also are made to a number of cases. When it comes to
case citation, a fairly scattershot approach is taken. Citations are broadly dispersed
and not clustered into one or two cases alone. On the other hand, some
advantage emerges in terms of subsequent citation frequency for early adjudication
in ictr history. This, however, is likely nothing more than the simple
gift of temporality. Another factor that would likely bear upon the frequency of
citation – but that this research does not explore – is language, notably,
whether specific judgments and materials are available in English.37 Ostensibly,
this variable would affect the accessibility of all international materials in us
courts.

I do not see this variable, however, as relevant in the case of the ictr
(or icty or icc). The ictr’s official languages were English and French.
Overwhelmingly, judgments have been rendered in or translated into English;
all statutory and regulatory materials are available in English.

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