Tort Claims for Torture in Iraq

[Francisco Martin]

I did not mean to suggest the Prof. Sisk ascribed to the points that I
mentioned in my previous posting.  I was using them as background.  My
apologies to Prof. Sisk for not being clearer.  I also agree that Prof.
Sisk has accurately described the case law on this matter.  My point -- on
which he recognizes but takes no position -- is that the courts have not
addressed the argument that I have made concerning the Charming Betsy
Rule's application to ATCA and, consequently, the nature of ATCA as
establishing/recognizing a customary international legal right to
individuals for a judicial remedy for human rights violations committed by
federal actors.  Therefore, ATCA would fall under the Westfall Act's
statutory exception.  Iraqis would have a remedy by way of ATCA against
federal employees.

To answer Prof. Sisk's question as to "where in international law is it
mandated that such redress come through the vehicle of a private tort suit
litigated in court?" . . . .  First, let me say that international law does
not require redress through a "tort" suit.  I do not think that "tort" is
used in international law -- except when international courts are
describing the availability of domestic remedies in Anglo-American courts. 
(Although I may be wrong about this.)  What international human right law
requires is that states provide all persons (including private individuals,
including aliens) a domestic remedy for international human rights
violations committed by state actors -- even if "acting in an official
capacity."  See, e.g., ECHR, art. 13.  Furthermore, some treaties further
require a "judicial" remedy.  See, e.g., ACHR, art. 25; ICCPR, art. 2 (3). 
Even in the case of the ECHR that does not expressly require a judicial
remedy, the Eur. Ct. H.R. has held that the state must provide a domestic
judicial remedy because domestic remedies provided by the political
branches often are insufficient or ineffective. See, e.g., Tumilovich v.
Russia, Application No. 47033, Eur. Ct. H.R. (1999) (domestic remedy
depending on discretionary powers do not constitute effective domestic
remedy).

Finally, if Congress or the President should provide only compensation to
the victims of U.S. torture, etc., this still would be an insufficient
remedy under international law.  The principle of restitutio in integrum
under international law requires not only monetary damages, but also
(depending on the harms perpetrated or continuing to be perpetrated, or
even foreseeably could be perpetrated) punishment and other injunctive
relief. See, e.g., U.S. v. Iran, ICJ (1980).

Francisco Forrest Martin

> [Original Message]
> From: Sisk, Gregory C. <GCSISK at stthomas.edu>
> To: <ricenter at igc.org>; CONLAWPROF <conlawprof at lists.ucla.edu>
> Date: 5/9/2004 1:48:55 AM
> Subject: RE: Tort Claims for Torture in Iraq
>
> In response to Professor Martin's critique of my understanding of the
Alien
> Tort Claims Act as "conceptually flawed," I feel bound to say in response
> that I never made the first argument to which he responds, but rather
noted
> that whether the ATCA is merely a jurisdictional statute or instead
creates
> a private cause of action (or serves as the basis for implementing an
> international customary law cause of action) is the very issue pending
> before the Supreme Court (which presumably granted certiorari because the
> Justices think the question to be an important and reasonably debatable
one)
> and that the plain language of the ATCA appeared to me susceptible to both
> understandings, making this an interesting case of statutory
interpretation.
> I expressly declaimed any resolution of the debate about whether customary
> international law may be incorporated through the ATCA to allow a private
> right of action in an American court.  Whether Professor Martin or instead
> the Solicitor General is correct on this point is not something on which I
> offered an opinion.
>
> However, I did offer an opinion, grounded in consistent federal court
> precedent from the Supreme Court or the lower courts, that the ATCA is
not a
> waiver of sovereign immunity, that it cannot be used to sue the United
> States government, and that the ATCA also does not override the Westfall
Act
> in providing immunity for federal employees acting within the scope of
> employment.  I understand that Professor Martin disagrees with these
> consistent and unbroken rulings and hopes that courts that have not yet
> addressed the issues will rule differently, but I would submit that my
> precedentially-grounded analysis (and no court has issued a ruling
> inconsistent with my analysis), while certainly not infallible (as courts
> may overruled precedents and other courts disagree), is nonetheless not
> conceptually flawed.
>
> Now, turning to another point and admitting here that I step beyond my
field
> of expertise, Professor Martin's latest posting raises one further
question
> in my mind.  While I understand that certain fundamental international law
> concepts (jus cogens), such as the prohibition on torture, are binding
upon
> every country and demand some redress, where in international law is it
> mandated that such redress come through the vehicle of a private tort suit
> litigated in court?  Most nations rely upon litigation to resolve
disputes,
> including personal injury claims, far less frequently and prominently than
> the United States, so I would be surprised to learn that a judicial remedy
> is the norm as Professor Martin suggests.  Defense Secretary Rumsfeld
> testified yesterday that he was exploring means by which to provide
> compensation to the victims, presumably by executive power.  Congress also
> could legislate compensation.  If one or the other or both are
accomplished,
> why would it follow that a private tort suit in court must be permitted as
> well?  (I am asking here about what international law, to the extent it
has
> coalesced on such a point, suggests, which of course is a different
question
> than whether the courts in America will act accordingly or feel bound
> thereby, on which I've offered a tenative negative answers as outlined
> previously and above.)
>
> Finally, I feel obliged as well to update my prior comments, in which I
> noted that what had been reported thus far about the misconduct of the
> American guards in Iraq indicated that many of the incidents may have been
> something other than torture, however appalling they may have been. 
Coming
> home late last night to learn about Rumsfeld's testimony that incidents of
> rape and murder occurred, more horrifying even than the episodes of
> humiliation pictured in the media thus far, the proper application of the
> word "torture" seems inescapable here.  The demand for a remedy, be it
> judicial or otherwise, is thus most compelling and, I predict, it will be
> provided (although I tend to think it will not come through the courts).
>
> Greg Sisk
>
>
> -----Original Message-----
> From: Francisco Martin [mailto:ricenter at igc.org]
> Sent: Sat 5/8/2004 9:11 PM
> To: CONLAWPROF
> Subject: RE: Tort Claims for Torture in Iraq
>  
> I also wish to thank Prof. Sisk for his in-depth analysis.  It has been
> very helpful to this discussion.
>
> However, I believe that his understanding of the ATCA is conceptually
> flawed.  To explain, allow me first to set the discussion in a broader
> context.  Why did Congress enact ATCA (in 1789)?  The historical record is
> unclear.  Some folks believe that it was enacted as a result of some
> earlier cases dealing with, for example, an assault on a foreign diplomat,
> and the U.S. wanted to avoid future international crises by providing a
> remedy to such aliens.   That's a good functionalist explanation -- but
> only a partial one.  
>
> For an international lawyer familiar with 18th century customary
> international law, the answer is very clear.  Customary international law
> in 1789 did not recognize an alien's right to compensation and other
relief
> from a foreign sovereign for its violation of international law.  Only the
> alien's home state had legal standing to demand compensation and other
> relief on behalf of their nationals from a foreign state -- including
> states of the U.S.  However, Article III indicated that the judicial power
> of the U.S. extended to suits by aliens against states of the U.S., and
the
> ATCA ensured that such suit could be undertaken against the U.S., the
> states, federal and state actors, and private individuals.  However,
> prompted by the Supreme Court's decision in Chisholm v. Virginia, the 11th
> Amendment was adopted nine years later recovering state immunity for such
> suits and, most importantly, thereby returning the Constitution back into
> conformity with some of this customary international law. (I believe that
> Thomas Lee at Fordham has written about this.)
>
> However, customary international law has changed since 1789.  It is clear
> that individuals -- including aliens -- have a SUBSTANTIVE right under
> customary international law (as reflected in several widely adopted
> multilateral treaties) to a judicial remedy for international human rights
> violations (such as torture and degrading treatment) committed by foreign
> state actors or U.S. federal actors.  (By the way, the Solicitor General's
> brief in Alvarez-Machain rejecting this claim is full of mistakes.) 
> Although states -- including the U.S. -- have a certain margin of
> appreciation under this international law in how exactly they go about
> providing a domestic judicial remedy to an individual, they still must
> provide a full remedy under the restitutio in integrum principle of
> international law.  Hence, states lawfully can prevent themselves being
> named defendants in domestic courts, but then they have to allow someone
> who is responsible for the international legal violation to be a
defendant.
> Such a defendant would be a government official.
>
> Now, the Supreme Court's Charming Betsy Rule requires federal statutes to
> be construed in conformity with customary international law.  The ATCA was
> and certainly is NOT MERELY a jurisdictional or private right of action
> statute (the two concepts not being distinct before the 1840s.  See Tony
> D'Amato's book).  Regardless of whether it was later codified in Title 28,
> the ATCA reflects a substantive right -- although in 1789 it did not
> reflect a substantive customary international legal right.   It does so
> now. Therefore, the ATCA as construed in conformity with present customary
> international law falls under the Westfall Act's statutory exception
> because it both provides both a private cause of action and guarantees a
> substantive right.  The Ninth Circuit failed to apply the Charming Betsy
> Rule to ATCA in Alvarez-Machain, and this question regarding the Westfall
> Act's statutory exception was not taken up by the SCOTUS.  Therefore, this
> issue has not been resolved, and it is quite possible that federal
> employees committing international legal violations could be successfully
> sued under ATCA.
>
> Francisco Forrest Martin
>