Tort Law Provisions for Foreigners in the UK and Europe
International Justice
Halfway through the 21st century, the international political environment remains hostile with international justice remaining elusive. Nonetheless, certain established mechanisms allowed people to achieve a certain degree of international justice as a better option to allowing impunity for people accused of human rights violations. ( 2004)
Tort Law in the United States
The Alien Tort Claims Act (ATCA) 1789 is a mechanism for international justice that opens the opportunity for victims of human rights abuses to obtain a particular measure of relief. This statute covers violations of international norms by perpetrators with certain ties to the US such as corporations based in the country or individuals who are US residents even if the violation occurred outside the United States.
The Alien Tort Claims Act 1879 commenced application to human rights through (1980). The defendant is the former police chief of Paraguay’s but arrested in his residence in Brooklyn, New York. He was sued for the torture and killing of a young man in Paraguay by the man’s relatives. The Second Circuit Court held that deliberately torturing a person using one’s authority to commit the act is a violation of international norms and the court awarded damages to the family of the victim. Although the family did not receive the awarded compensation, the decision made a stark statement that torture is not acceptable regardless of whether the act was committed because this is against the norms of the law of nations subject to accountability as long as the ATCA applies.
Twenty-five years after Filartiga, the US Supreme Court took cognizance of (2004), which questions the use of the ATCA as an instrument for international justice. In this case, the issues raised on appeal is whether the alleged actions of the Drug Enforcement Agency of abducting to face criminal trial in the United States constitutes a claim against the US government under the Federal Tort Claims Act (FTCA) () and whether based on this issue he is entitled to recover under the Alien Tort Statute (ATS) (). The Supreme Court held that is not entitled to the provisions of either statute.
The case commenced with United States v (1992) when the respondent was indicted for participating in the torture of a DEA operative. The DEA authorized a plan to hire Mexican nationals, one of which is , to seize and bring him to the United States. questioned the validity of the manner of bringing him into the US. After one year, he was acquitted of the offence. Upon returning to Mexico, he brought a civil action against Sosa and the other Mexican nationals for damages. The district court allowed the claim for damages under the ATS but dismissed the claim under the FTCA. The Ninth Circuit confirmed the ATS award but reversed the decision on the FTCA decision. In the Supreme Court, the decision reversed the award under the FTCA and the ATS.
The US Supreme Court gave out a clear message to the current administration and the supporting multinational corporations that they cannot subvert international human rights laws. The decision in the Sosa case placed the Alien Tort Claims Act 1879 on stable ground. The US Supreme Court decision was seen as a victory for human rights because it prevented the efforts of the US government and large multinational corporations from removing an important mechanism of international justice.
Tort Law in Europe
In the case of Europe, a landmark decision came out in 2001 ( ) that advocates international humanitarian law against enslavement and sexual violence. The International Criminal Court for Yugoslavia sentenced three ethnic Serbs for the rape of women in the Bosnian town of Foca in Sarajevo. The defendants were charged with torture, violations of the customs of war, crimes against humanity and rape. The tribunal held that the atrocities committed by the defendants formed part of systematic attack against Muslims. Although this is a criminal case and the victims may not receive any compensation, the case shows that there are also mechanisms available in other regions allowing the victims of human rights violations and crimes to seek redress in international tribunals.
The Alien Tort Claims Act as a Powerful Human Rights Tool
ATCA and ATS have helped victims of various human rights abuses through the venue of the courts. It was the Filartiga case that begun the implementation of the provisions of the statute to human rights violations and succeeding cases applied the guidelines provided b this case until the decision in the Sosa case.
In v (1996), a number of Ethiopian nationals sought relief for the violent acts committed against them by a senior officer of the military government. The victims claimed they were tortured and subjected to cruel, degrading and inhuman treatment by the military official in violation of the norms upheld by the law of nations. The district court found that the military official subject of the complaint either supervised or actually participated in the torture of the complainants so that the court awarded damages to the victims. On appeal, the decision was upheld through the statement that the complainants had a right of action under the ATCA and the principle drawn in the Filartiga case that torture violates the law of nations.
In the case of v (1996), a complaint was made against the self-proclaimed president of the Bosnian Serbs due for various human rights atrocities in the former Yugoslavia since 1992. The complainants alleged that the self-proclaimed president was responsible for genocide and other crimes against humanity in violation of the law of nations. The Second Circuit held that the complainants offered enough evidence to prove the violations of international law covered by the ATCA. The decision established that either governments or private individuals might commit violations of the law of nations; in this case, the perpetrator was legally a private person since his presidential status was achieved through his own proclamation. The International Criminal Tribunal subsequently indicted Karadzic for genocide, other crimes against humanity and war crimes.
In succeeding years, the ATCA were also used to obtain relief from grave violations of human rights committed by corporations. However, cases filed against corporations under these provisions have not yet proceeded to the determination of the merits of the case while awaiting the decision in the Sosa case. The decision on the merits of these cases would serve as precedents on human rights claims against corporations.
In v (1997), Burmese nationals alleged they were made to work by force in the construction of gas pipelines by Unocal and they were also raped and tortured. The pipeline construction was a joint project by the Burmese government, Unocal and Total S.A. The complainants further alleged that the companies involved in the pipeline construction were complacent by allowing the Burmese military to use intimidation and violence in relocating the villages and forcing the villagers to work on the construction. ( 2002) The Ninth Circuit went on to hear arguments and deliberate on the issue of whether the companies subject of the complaint are liable since under ATCA where liability accrues to direct participants and the parties that knowingly aided and abetted the human rights violations. However, the appellate court withdrew the case pending the decision of the US Supreme Court on the case.
Another important case against corporations is v (2000). The case was brought against Shell and Royal Dutch Petroleum after their activities in the Ogoni region of Nigeria caused the execution of and , both political activists. The complainants accused the companies of being involved in the abuses perpetrated by the Nigerian military such as arrests and executions. The court allowed the case to proceed. Another case was filed against Shell in 2002 by the surviving family of an official of the Nigerian government and fourteen other individuals alleging the involvement of the company in human rights violations. There is yet a resolution to the case.
Still another case filed against a company is , (2003) that was brought in behalf of Christians and other non-Muslims residing in the southern region of Sudan. The complainants allege that government military forces, aided by Talisman Energy, were sent to the southern region to bring about the displacement of the civilian population so that the company can commence oil exploration in the region. Talisman filed a motion to dismiss that was denied by the court because the victims had legal claims under the ATCA for genocide acts, other war crimes, torture and other human rights violations. Again, a final resolution on the case is pending.
In the case of actions or claims against governments and private individuals for actionable violations covered by the ATCA, the provisions of the statute have been successfully applied in the Filartiga case and recently in the Sosa case. However, in cases filed against corporations, there is yet to be a decided case. Nevertheless, as a mechanism for international justice, the statute is successful in providing victims of human rights violations with a legal venue to voice their claims. When compared to not having any mechanism for bringing claims, having the Alien Tort Claims Act 1879 is a better option especially since the Sosa case has given stability by the statute. Maybe now the pending cases against corporations will be finally determined.
Conclusion
International justice is an elusive goal because of the complexity of the dynamics of international law and politics so that mechanisms from which victims can achieve certain levels of relief are important. A mechanism proven effective in providing human rights victims with a venue or means of attaining certain relief is the Alien Tort Claims act 1879, which has been in operation for twenty-five years. The Filartiga and the Sosa cases as well as the cases in the period between these cases are proofs of the degree of effectiveness of the statute. Although the ATCA offers limited relief, it still serves as a significant statement of the advocacy of international justice.
References
Cases
Secondary Sources
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