Tort Liability for Human Rights Abuses

223 Pages·2008·0.73 MB·English

by  George P. Fletcher

TORT LIABILITY FOR HUMAN
RIGHTS ABUSES
Advancing a bold theory of the relevance of tort law in the fight
against human rights abuses, celebrated US law professor George
Fletcher here challenges the community of international lawyers
to think again about how they can use the Alien Tort Statute.
Beginning with an historical analysis, Fletcher shows how tort and
criminal law originally evolved to deal with similar problems, how
tort came to be seen as primarily concerned with negligence, and
how the Alien Tort Statute has helped establish the importance of
tort law in international cases. In a series of cases starting with
Filartiga and culminating most recently in Sosa, Fletcher shows
how torture cases led to the reawakening of the Alien Tort Statute,
changing US law and giving legal practitioners a tool with which
to assist victims of torture and other extreme human rights abuses.
This leads to an examination of Agent Orange and the possible
commission of war crimes in the course of its utilisation, and the
theory of liability for aiding and abetting the US military and other
military forces when they commit war crimes. The book concludes
by looking at the cutting-edge cases in this area, particularly those
involving liability for funding terrorism, and the remedies avail-
able, particularly the potential offered by the compensation cham-
ber in the International Criminal Court.

Tort Liability for
Human Rights
Abuses
George P Fletcher
OXFORD AND PORTLAND, OREGON
2008
Published in North America (US and Canada) by
Hart Publishing
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© George P Fletcher 2008
George P Fletcher has asserted his right under the Copyright, Designs and Patents
Act 1988, to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a
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to Hart Publishing at the address below.
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British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84113-794-0
Typeset by Compuscript Ltd, Shannon
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
For Francisco,
the beloved father of Brachah

Contents
Introduction: The New Rights .....................................................1
1. Rights for Humans ..............................................................1
2. Universal Jurisdiction ..........................................................4
3. Acquiring Jurisdiction over the Person ..............................15
4. The Basic Elements of the ATCA .......................................17
5. A Preview of the Argument ...............................................25
1: A Comparative Analysis of Tort Law .....................................27
1. The Original ‘Ticking Bomb’ Case ....................................30
2. The Attempt to Reconcile Trespass and Case ....................37
3. The ‘Birth’ of Strict Liability ..............................................39
4. Proximate Cause: The Last Gasp of Trespass ....................45
5. Comparative Analysis ........................................................53
6. If Criminal, Tort Follows ...................................................57
7. Punitive Damages ..............................................................58
2: The Paradigm of Efficiency ....................................................67
1. The Transition from Negative to Positive Efficiency ..........69
2. From Negative to Positive Efficiency: Once More .............73
3. The Implications of Cost–Benefit Analysis .........................79
3: Reciprocity .............................................................................85
1. Private Law, not Public Law ..............................................87
2. The Dispute about Contributory and Comparative
Negligence .........................................................................91
3. Excusing Risks ...................................................................95
4. Critique of Reciprocity ....................................................103
4: The Paradigm of Aggression ................................................105
1. The Passive Victim ...........................................................108
2. Interaction as the Alternative ...........................................110
5: Torture as Aggression ..........................................................115
1. Filartiga: The Pivotal Decision .........................................115
2. The Oddities of Torture ...................................................117
viii Contents
3. Torture in the Context of Armed Conflict .......................121
4. An Affirmative Account of Torture ..................................123
5. The Element of State Action ............................................125
6. Karadžic´ Completes the Cycle ..........................................127
7. Torts as Domination ........................................................128
6: The Jurisprudence of Sosa ....................................................133
1. The Abduction, and Losing in the Supreme Court ..........133
2. Winning in the Supreme Court ........................................135
3. Discretionary Development of the ATCA ........................144
4. Reconstructing the Sosa Opinion .....................................153
5. Discretion and Specificity ................................................157
7: The Liability of Accessories .................................................161
1. The Nature of Complicity ...............................................164
2. The Khulumani Case .......................................................168
8: Concluding Theses ...............................................................173
Appendix One: ATCA Cases Cited in the Preceding
Text in the Order they were Cited ........................................177
Appendix Two: Additional ATCA-related Cases
not Cited in the Text ............................................................185
Index ........................................................................................199
Introduction
The New Rights
Since World War II a great conceptual transformation has
occurred in the way politicians and lawyers think about indi-
vidual rights against governments. In the 1930s and 1940s
these rights were called civil rights and civil liberties. The US Supreme
Court was the centre of this development. The justices engaged far-
reaching issues of free speech and freedom of the press, the right
to a fair trial, and the suppression of racial discrimination. The
struggles for these constitutional rights were fought specifically
under the banner of ‘civil rights’ and ‘civil liberties’.
1. RIGHTS FOR HUMANS
With the United Nations Charter of 26 June 1945 and the
Universal Declaration of Human Rights, passed by the newly born
General Assembly on 10 December 1948, a new language came
into focus—the idiom of human rights.1 The idiom changed but the
substance did not. The same rights that American constitutional
lawyers had fought for since the enactment of the Bill of Rights in
1891 had taken on new connotations. They were universal rights,
belonging to everyone—not because they were American or subject
to the jurisdiction of the American states, but just because they
attached to every human being. After the Civil War, the Fourteenth
Amendment of the US Constitution recognised that the right to
equal protection of the laws accrued to everyone simply because
they were ‘persons’ within the jurisdiction of a state. No state could
discriminate against human beings under its power nor could it
deprive of them of life, liberty, or property without due process of
1 The UN Charter refers to ‘human rights’ several times. See Preamble, and Arts
1, 55, and 76.