Download Georgia Law Review, Fall 1996

31 GALR 281
31 Ga. L. Rev. 281
Page 1
Georgia Law Review
Fall 1996
Recent Development
KADIC V. KARADZIC: MISINTERPRETING THE ALIEN TORT CLAIMS ACT
Peter Schuyler Black
Copyright (c) 1996 Georgia Law Review Association, Inc.; Peter Schuyler Black
I. Introduction
The cryptic words contained in the Alien Torts Claims Act (ATCA) [FN1] were penned by Oliver Ellsworth as
part of the Judiciary Act of 1789. [FN2] Congress originally enacted the ATCA to give the newly created federal
courts jurisdiction over civil suits brought by alien individuals. [FN3] Exactly which causes of action Congress had
in mind, however, is somewhat of a mystery. [FN4] This mysterious background is due partly to a lack of legislative
history and partly to a lack of interpretive case law. [FN5]
Shortly after its enactment the ATCA lapsed into disuse and obscurity. [FN6] After almost two hundred years
of dormancy, it was resurrected by the Second Circuit in 1980, [FN7] and has since been used almost exclusively by
human rights groups to bring suits against human rights violators from foreign countries. [FN8] Courts have struggled with the application of this statute because it grants no cause of action to aggrieved individuals, but rather
merely grants jurisdiction over a tort “committed in violation of the law of nations.” [FN9] Thus, a plaintiff must
find a cause of action in the law of nations; or more specifically, in modern international customary law. [FN10]
Finding such a cause of action, however, can be a daunting task because international customary law is often ambiguous and controversial. [FN11]
As courts struggled with the application of the ATCA, Congress enacted the Torture Victim Protection Act
(TVPA) [FN12] to codify some of the developing case law. [FN13] The TVPA provided some clarification regarding what claims may be brought under the ATCA by expressly creating a statutory cause of action for torture and
extrajudicial killing committed by a government official. [FN14] Uncertainty persisted, however, because the
TVPA provides no guidance in determining whether other violations of international law may give rise to actionable
claims under the ATCA.
In Kadic v. Karadzic, [FN15] the Second Circuit faced a novel issue involving the scope of subject matter jurisdiction under the ATCA. The defendant in Kadic allegedly committed numerous violations of international law, but
was not acting on behalf of any recognized government when these violations occurred. [FN16] The defendant,
however, was not a purely private actor either; rather, he acted on behalf of an insurgent military group prosecuting
an ethnic civil war against a recognized government. [FN17] The Second Circuit was forced to decide whether the
defendant's egregious conduct violated international law. [FN18] More specifically, the court had to determine
whether international law can even apply to conduct that is neither purely statist nor purely private, but is something
in between.
Although the Second Circuit correctly held that the conduct at issue qualified for subject matter jurisdiction
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 2
under the ATCA, it fumbled its analysis of the underlying issues. Instead of recognizing that the defendant's conduct, although not technically statist, could be treated as such for purposes of the ATCA, the Second Circuit rejected
the state-action requirement altogether, reasoning that a nonstate actor is bound by, and may therefore violate, “the
law of nations.” Although the court did find a state-action requirement with respect to some of the plaintiffs' claims,
the court proceeded to hold that this requirement could be satisfied by showing that either the defendant's insurgent
military group was a state or that the defendant acted in concert with a recognized state. [FN19] This analysis is
problematic because it is artificial and raises disturbing policy implications.
The court's analysis is artificial because it glosses over the unique character of an insurgent military group in
international law. First, the group exists not as a legitimate government, but rather in defiance of a legitimate government. Second, any territory controlled by the group is usually seized through the use of illegal military force. To
declare this type of group a state is to overlook these important characteristics.
Recognizing an insurgent military group as a state raises important policy concerns. Declaring such an entity a
state bestows upon it an undeserved legitimacy. Also, once the court declares this group to be a “state,” in order to
be consistent the court should give it the same rights under international law as any other legitimate state. Although
an insurgent military group should be held accountable for its actions under international law, it should not be raised
to the status of a state.
In addition to its problematic reasoning with respect to these issues, the court failed to properly consider the
doctrine of forum non conveniens. Although Kadic presents an unlikely case for dismissal under this doctrine, the
court nevertheless should have gone through the analysis and discussed what alternative forums might have been
available and why they were or were not sufficient.
Although the Second Circuit ultimately reached the correct result, its reasoning creates troubling policy implications and therefore must be critically examined. To facilitate this examination, Part II of this Comment describes the
facts and holding of Kadic. Part III provides the legal background by describing the development of ATCA jurisprudence. Part IV presents the Second Circuit's analysis of the issues, and Part V criticizes the court's reasoning and
illustrates the ramifications of its flawed analysis. Part VI then offers an alternative analysis that reaches the same
result in a more sensible way. This Comment argues that courts should not obliterate the state-action requirement in
order to hold insurgent military groups liable under the ATCA. Instead, courts should treat such groups as de facto
governments or quasi-state entities whose actions independently satisfy the state-action requirement of international
law.
II. Facts and Background
On February 29, 1992, Bosnia-Herzegovina declared its independence from Yugoslavia by popular referendum.
[FN20] The Bosnian Serbs, however, boycotted the referendum and declared their own independence. [FN21] When
the Bosnian state was officially recognized by the international community, the Bosnian Serbs, led by Radovan
Karadzic, attacked Sarajevo. [FN22] The fighting soon escalated into an all-out civil war pitting Karadzic's rebel
Serbs against the Muslim Bosnian government. [FN23] As part of their military policy, the Bosnian Serbs conducted
a genocidal campaign of “ethnic cleansing” in which they committed numerous atrocities against the Bosnian Muslims and Croats. [FN24]
The plaintiffs in Kadic were two groups of Croat and Muslim victims of these Serbian atrocities. [FN25] The
first group was organized and represented by the New York-based Center for Constitutional Rights (CCR), a publicinterest group dedicated to litigating international human rights cases against right-wing officials and their governments. [FN26] The second group was organized and represented by Catherine MacKinnon of the National Organization for Women Legal Defense and Education Fund. [FN27] The plaintiffs alleged that they were victims (or representatives of victims) of numerous human rights violations committed by Bosnian-Serb soldiers during their cam-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 3
paign of ethnic cleansing, including acts of rape, forced prostitution, forced impregnation, torture, and summary
execution. [FN28]
The defendant was Radovan Karadzic, the leader of the Bosnian-Serb forces that allegedly carried out these
atrocities. [FN29] In addition to leading the Serb rebels, Karadzic claims to be the leader of “Srpska,” a selfproclaimed Bosnian-Serb state that is not recognized by any international organization. [FN30] The plaintiffs
claimed that Karadzic masterminded the systematic human rights violations committed by the Bosnian-Serb forces.
They also claimed that in committing these acts, Karadzic acted in an official capacity as either the head of Srpska
or in collaboration with the government of the recognized nation of Serbia. [FN31] The court consolidated the plaintiffs' complaints into a class action seeking compensatory damages, punitive damages, attorneys' fees, and injunctive
relief. [FN32]
In 1993, while present in the United States as an invitee of the United Nations, Karadzic was personally served
with the summons and complaint. [FN33] Shortly thereafter, Karadzic moved for dismissal on the grounds of defective service of process, lack of personal jurisdiction, lack of subject matter jurisdiction, and nonjusticiability of
the plaintiffs' claims. [FN34] Without deciding the other issues, the district court granted Karadzic's motion to dismiss for lack of subject matter jurisdiction. [FN35] The court held that neither the ATCA, [FN36] nor the TVPA,
[FN37] nor the general federal-question jurisdiction statute, [FN38] provided subject matter jurisdiction for atrocities committed by nonstate actors in foreign countries. [FN39] The court reasoned that because Karadzic was not the
leader of a recognized nation he was a private, nonstate actor and therefore his acts did not qualify for the jurisdiction of United States federal courts. [FN40]
The Second Circuit, however, reversed the district court, holding that the ATCA gave the district court subject
matter jurisdiction over some violations of international law even when committed by a private actor, and that
Srpska could qualify as a state despite its lack of official recognition. [FN41] Because it found subject matter jurisdiction under the ATCA, the Second Circuit declined to consider whether the plaintiffs' allegations presented a
federal question under 28 U.S.C. S 1331. [FN42] Thus, the court remanded the case to the district court to consider
whether Srpska was a state, whether aid from Serbia satisfied the state-action requirement under the TVPA, and for
a possible a trial on the merits.
III. Relevant Law
The Second Circuit, in holding that the federal courts have subject matter jurisdiction over the atrocities committed by Karadzic's troops, wrestled with the difficult problem of how to deal with the conduct of an insurgent military group that is neither a state entity nor a private actor. In order to properly assess the court's analysis, however,
it is first necessary to examine the background and development of the law under the ATCA.
a. alien tort claims act (atca)
Congress enacted the ATCA as part of the Judiciary Act of 1789, [FN43] a jurisdictional statute which granted
jurisdiction over certain areas of law to the newly created federal district courts. [FN44] It provided, in its original
text, as follows:
(United States District Courts) shall also have cognizance, concurrent with the courts of the several States, or
the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. [FN45]
The Act as a whole was obviously designed to organize the newly created federal judicial system, [FN46] but
the purpose of the cryptic language in the ATCA is not so clear. Indeed, the ATCA has been described as an “old
but little used section (and) . . . a kind of legal Lohengrin; . . . no one seems to know whence it came.” [FN47] It
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 4
can be inferred that because it was a jurisdictional statute, the ATCA was not intended to create any new cause of
action, but rather to grant jurisdiction over those already in existence. [FN48] Exactly which causes of action,
however, is the subject of some controversy. [FN49] Notwithstanding the lack of official legislative history, some
commentators have engaged in studies of historical documents and events in order to better understand the statute's
purpose, which in turn may provide assistance to the judges who must apply it. [FN50]
Professor Joseph Sweeney published such a study in 1995, propounding one theory to explain the purpose of the
ATCA. [FN51] Sweeney contends that the ATCA specifically referred to a suit in a unique and specialized body of
law known as the “law of prize.” [FN52] He therefore argues that the ATCA's purpose at the time of its drafting
was to grant concurrent jurisdiction to the federal district courts over this specific cause of action, which previously
had been heard only in colonial admiralty courts functioning as prize courts during times of war. [FN53] Specifically, Sweeney traces the words “tort only” and “in violation of the law of nations or a treaty of the United States”
directly to language from case law in prize cases. [FN54]
At the time Congress enacted the ATCA, United States war ships were allowed to capture enemy merchant vessels during times of war pursuant to the “law of prize.” [FN55] The American ship's commander could then have
the enemy vessel and cargo condemned as lawful prize in the United States prize courts. [FN56] During these seizures, however, the captors “were forbidden to do injury to persons or property aboard the intercepted vessels.”
[FN57] Indeed, “(a)n alien who was the victim of such an injury” had a cause of action against the commander of
the United States ship. [FN58] In 1789, the Judiciary Act's purpose was to wrest the jurisdiction over prize cases
from state (previously colonial) prize courts and vest it in the newly created federal courts. Under the new scheme,
federal courts obtained exclusive jurisdiction “to decide the legality of a capture as prize and any issue incidental to
the capture . . . .” [FN59] If the legality of the capture was not at issue, however, and the case was one in which an
alien sued for a “tort only,” the ATCA made the jurisdiction of the federal courts concurrent with the jurisdiction of
the state courts. [FN60]
Professor Sweeney's theory is bolstered by the early case law under the ATCA. The first case in which an alien
plaintiff asserted an ATCA claim was a prize case in which the owners of a British ship sued its French captors.
[FN61] The owners sought restitution of the ship and its cargo, as well as damages for the vessel's detention.
[FN62] The court dismissed the case on the grounds that it had no jurisdiction under the ATCA because the suit was
not for a “tort only,” but rather was principally for restitution of the property. [FN63] Two years later, a district
court in South Carolina held that it had subject matter jurisdiction over a prize case pursuant to its admiralty jurisdiction and the ATCA. [FN64] This case also involved a suit by a British owner against a French captor for restitution
of the seized cargo. [FN65] The court held that, pursuant to a treaty between the United States and France, the
French privateer was permitted to keep the “prize.” [FN66] In both of these cases, alien plaintiffs relied on the
ATCA for federal subject matter jurisdiction; thus these cases demonstrate that the ATCA was originally used in a
way consistent with Professor Sweeney's theory.
In contrast to Professor Sweeney's theory, Professor William Casto argues that the ATCA was intended to grant
jurisdiction over a wide range of torts committed in violation of the law of nations. [FN67] Specifically, he argues
that the ATCA was enacted in order to allow alien plaintiffs such as ambassadors an impartial forum in which to
bring claims. [FN68] He argues further that the ATCA is a reaction to a few cases in which foreign ambassadors'
claims were mishandled by state courts. [FN69] The law of nations in 1789, however, was limited to three areas of
law: (1) violations of safe-conducts; (2) infringement of the rights of ambassadors; and (3) piracy. [FN70] Therefore, even under this view there was a relatively small range of torts that fell within the purview of the
ATCA. Moreover, Professor Casto's view does not adequately explain the unique wording of the ATCA or why the
ATCA was only invoked in prize cases. The ATCA grants jurisdiction for suits by an alien for a tort only. [FN71]
Professor Casto explains that the Framers used the phrase “tort only” in order to “exclude() minor commercial disputes arising under (a branch of international law called) the law of merchant.” [FN72] This theory, however, is
not convincing because it does not specify how the presence of the word “only” excludes minor commercial disputes. Under Professor Casto's theory, the word “only” is surplusage.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 5
Professor Sweeney's argument, on the other hand, adequately explains the presence of the word “only.” He argues that the word is meant to separate the issue of a capture's legality under the law of prize from any incidental tort
claims. [FN73] If an alien does not contest the legality of the seizure and sues for a “tort only,” the district court's
jurisdiction is concurrent with that of the state court. [FN74] If the alien also contests the legality of the seizure,
however, the federal court will have exclusive jurisdiction over both the tort claim and the legality issue. [FN75]
The important point is that the ATCA is only a jurisdictional statute. It did not create an independent cause of
action; it merely bestowed federal subject matter jurisdiction over some existing causes of action. [FN76] Whether
the cause of action arose from the law of prize or from some general tort in violation of the law of nations, it was
still an existing cause of action. Thus, an actionable claim under the ATCA must be found in another body of law.
The question therefore arises of whether we should remain true to the intent of the drafters and interpret the ATCA
based on the causes of action they intended it to cover, or whether we should interpret it with reference to the modern view of what constitutes a violation of the “law of nations or a treaty of the United States”? This question was
answered in part by case law and in part by the enactment of the TVPA.
b. case law interpreting the atca
1. Filártiga v. Peña-Irala. Prior to the Second Circuit's landmark ruling in Filártiga v. Peña-Irala, [FN77] the
ATCA had been successfully invoked only once in the preceding 150 years. [FN78] Because of this lack of case
law, [FN79] Filártiga is widely regarded as the case that set modern precedent for interpreting the ATCA. [FN80] In
Filártiga the Second Circuit held that the ATCA gave the federal courts subject matter jurisdiction over a suit by the
family of a torture and murder victim against the Paraguayan government official who allegedly committed the acts.
[FN81] Subsequent cases have cited Filártiga for three propositions: First, the “law of nations” should be construed
as it exists among the nations of the world today, not as it existed in 1789. [FN82] Second, “one source of that law is
the customs and usages of civilized nations,” as described by jurists and commentators. [FN83] Third, modern
international law places limits on a state's power to torture persons held in its custody. [FN84]
These propositions in turn lead to the conclusion that the ATCA no longer grants jurisdiction over a circumscribed group of claims as intended by its drafters, but rather grants jurisdiction over a potentially unlimited number
of violations of international law. There are, however, some limiting factors associated with these principles. The
most significant of these limitations stems from the requirement that there be a violation of international law for the
court to have jurisdiction. [FN85] Because international law binds only states and not private individuals, an individual must be acting on behalf of a state or under the color of state law in order to violate “the law of nations.”
[FN86] This state-action requirement limits the number of defendants to which the ATCA may apply. [FN87]
2. Tel-Oren v. Libyan Arab Republic. The state-action requirement drawn from Filártiga became solidified by
Judge Edwards's opinion in Tel-Oren v. Libyan Arab Republic. [FN88] In that case, several Israeli citizens asserted
claims of torture, summary execution, and terrorism against the Palestine Liberation Organization (PLO) in connection with a terrorist raid that resulted in the deaths of twenty-two adults and twelve children--all innocent civilians.
[FN89] A three-judge panel of the District of Columbia Circuit Court of Appeals unanimously affirmed the dismissal of the claims. [FN90] Dismissal, however, was about all that the judges could agree upon-- all three wrote
separate opinions.
Judge Edwards's opinion agreed with the holding in Filártiga; his reason for dismissing the case was that the
PLO was not a state, and therefore its alleged atrocities did not satisfy the state-action requirement. [FN91] Judge
Robb based his opinion on the political-question doctrine, arguing that the Baker v. Carr [FN92] factors cut in favor
of dismissal because the issues should be handled by a political branch of government. [FN93] Judge Bork made the
same political-question argument, but he also argued that because the ATCA created no cause of action, the court,
under separation of powers principles, should refuse to infer one. [FN94] In addition, both Judge Bork and Judge
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 6
Robb openly questioned Judge Edwards's reliance on the Filártiga holding. [FN95] The confusion created by these
three opinions prompted Congress to pass the Torture Victim Protection Act. [FN96]
c. torture victim protection act
Congress enacted the Torture Victim Protection Act (TVPA) [FN97] partly to cure the confusion surrounding
the ATCA and partly to fulfill obligations imposed by the Convention Against Torture, [FN98] which Congress had
ratified two years earlier. [FN99] Section 2 of the TVPA, entitled “Establishment of Civil Action,” provides:
(a) Liability.--An individual who, under actual or apparent authority, or color of law, of any foreign nation-(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
(b) Exhaustion of Remedies.--A court shall decline to hear a claim under this section if the claimant has not
exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.
[FN100]
The TVPA did three things relevant to the development of case law under the ATCA. First, it affirmed Filártiga's holding that official torture is actionable under the ATCA. [FN101] Second, it affirmed Judge Edwards's interpretation of Filártiga that a person must be a state actor to violate the “law of nations” under the ATCA. [FN102]
Third, it responded to Judge Bork's assertions that the ATCA did not create a cause of action by expressly creating
one separate from the ATCA. [FN103]
Additionally, however, the TVPA may have limited further expansion of ATCA jurisdiction: by creating an
express cause of action for official torture and extrajudicial killing, it impliedly repealed the ATCA with respect to
such claims. [FN104] Indeed, although all claims of torture or extrajudicial killing must still be brought under the
ATCA for jurisdiction, the cause of action is no longer found in the nebulous world of international customary law,
but rather is found in the TVPA. Thus, all such claims are now subject to the TVPA's state-action requirement.
Moreover, Congress's codification of the state-action requirement, albeit only with respect to torture and extrajudicial killing, implicitly signals its approval of the premise on which the requirement is based--namely, that the
law of nations governs relations between states and therefore cannot be binding on strictly private, individual conduct. [FN105] The reasonable inference to be drawn is that Congress approved of this state-action requirement and
expects courts to apply it to other causes of action brought under the ATCA.
d. the binding nature of international customary law and
the state-action requirement
“The traditional view of international law is that it establishes substantive principles for determining whether
one country has wronged another.” [FN106] These principles and rules are binding on civilized states in their relations with each other. [FN107] The idea that international law applies only between nations has evolved over time,
“such that international law (has become) applicable to nations acting against their own citizens or to a foreign government acting against an individual.” [FN108] In addition to holding nations responsible for actions against individuals, international law has also evolved to include actions by an individual, but only when that individual acts on
behalf of a government. This principle is manifested in federal common law as the requirement that an individual
must act under color of law in order to violate the law of nations.
Veritably, this principle seems embedded in the federal common law. The Second Circuit applied it in Filártiga
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 7
to uphold a claim against an official of the Paraguayan government for official torture, [FN109] and since then a
handful of courts have followed the Second Circuit by holding that they have jurisdiction over foreign government
officials who have violated the law of nations. [FN110] Furthermore, courts have consistently held that actions of
purely private individuals are not violations of international law. For example, in Tel-Oren v. Libyan Arab Republic,
the District of Columbia Circuit applied this principle to dismiss a suit against the Palestine Liberation Organization
(PLO) on the grounds that it was not a state. [FN111] Likewise, in Sanchez-Espinoza v. Reagan, [FN112] Judge
Scalia (now Justice Scalia) used the state-action requirement to dismiss a suit against the Nicaraguan Contras:
We are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private
individuals. As for the law of nations--so-called 'customary international law,' arising from 'the customs and usages
of civilized nations,'--we conclude that this does not reach private nonstate conduct of this sort. [FN113]
Thus, no court has yet held that a private individual may be liable for a violation of international law.
Moreover, Congress approved the principle that international law only binds individuals acting under the color
of state law by inserting the state-action requirement into the TVPA. [FN114] Although the TVPA applies only to
torture and extrajudicial killing, congressional approval of this principle indicates that Congress favors applying it to
other causes of action. Indeed, the state-action requirement was not inserted because torture is somehow more heinous when committed by a state actor than when committed by a private individual; rather, it was inserted as an embodiment of the principle that the law of nations only applies to the relations between states. [FN115]
The state-action requirement also serves an important policy function: it limits the scope of potential defendants
who may be sued under the ATCA, thereby limiting the amount of potential litigation arising from the creation of a
statutory cause of action. The legislative history of the TVPA demonstrates that this policy is favored by Congress.
[FN116] President Bush articulated similar policy concerns when he signed the TVPA into law:
(T)here is too much litigation at present . . . . (T)he expansion of litigation by aliens against aliens is a matter
that must be approached with prudence and restraint. It is to be hoped that U.S. courts will be able to avoid these
dangers by sound construction of the statute and the wise application of the relevant legal procedures and principles.
[FN117]
Although the TVPA is limited to torture and extrajudicial killing, these same concerns apply with equal force to
all violations of international law.
IV. The Second Circuit's Analysis
In Kadic v. Karadzic, the Second Circuit sought to build on the foundation it had established in Filártiga by expanding the reach of the ATCA to cover causes of action other than torture and to permit nonstate actors to be held
liable. The Second Circuit began by reversing the district court's dismissal of the suit, finding that the district court
had subject matter jurisdiction under the ATCA for violations of international law committed by a nonstate actor.
[FN118] Having thus established subject matter jurisdiction, the court concluded that the service of process on
Karadzic had been proper and that he was not immune from the court's personal jurisdiction. Finally, the court held
that the case before it did not present a non-justiciable political question. The court therefore remanded the case for a
determination of whether Srpska is a state, whether aid from Serbia satisfies the state-action requirement, and finally
a possible trial on the merits.
a. subject matter jurisdiction
The Second Circuit found that the district court had subject-matter jurisdiction under the ATCA because
Karadzic's alleged conduct violated international law. [FN119] In doing so, the court applied the construction of the
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 8
ATCA it had announced in Filártiga, which holds that the ATCA provides jurisdiction over a case in which (1) an
alien sues (2) for a tort (3) committed in violation of the law of nations. [FN120] Because the first two requirements
were clearly satisfied in this case, the court focused on whether Karadzic's acts violated the “law of nations.”
[FN121]
Determining whether Karadzic's alleged conduct violated international law in turn necessitated a two-part inquiry. First, the court had to decide whether a nonstate actor could be liable at all under the “law of nations.”
[FN122] This inquiry was basically a decision as to whether Filártiga should extend to an individual who is neither a
state actor nor a purely private actor. Specifically, the court had to decide how to treat the leader of an insurgent
military group allegedly responsible for numerous human rights violations. Second, the court had to determine
whether the alleged atrocities amounted to a violation of the “law of nations.” [FN123] In determining whether such
a violation had occurred, the court applied the principle from Filártiga that courts must interpret international law
not as it existed when the ATCA was enacted, but rather as it exists today. [FN124] This must be done, according to
Filártiga, by consulting the writings of jurists, judicial decisions, and the general usage and practice of nations.
[FN125]
1. International Law Binds Nonstate Actors. The court first examined whether a private, nonstate actor could
violate the “law of nations.” In arguing affirmatively, the court noted that United States courts have applied international law to hold nonstate actors liable in the past. [FN126] Because this issue is rarely litigated, however, the case
law is relatively scarce. The court first cited 150-year-old criminal cases to support its argument, looking to early
cases in which the Supreme Court had held nonstate actors criminally liable for piracy on the grounds that pirates
are “hostis humani generis” (enemy of all mankind). [FN127] The court next cited an executive branch opinion from
a 1795 case in which the United States Attorney General declared that an American slave trader could be sued by
British citizens for his participation in the plunder of British property off the coast of Sierra Leone. [FN128]
The court then jumped forward in time to cite the executive branch's support for holding private individuals
liable in the present case. [FN129] Finally, the court pointed out that the Restatement (Third) of Foreign Relations
Law of the United States specifies that individuals may be liable for certain violations of international law such as
piracy, slave trading, and aircraft hijacking. [FN130] The court concluded that because these violations may be
committed by nonstate actors, international law must permit states to impose civil liability upon such nonstate actors. [FN131]
The court rejected Karadzic's arguments that ATCA case law prevents its application to nonstate actors. Karadzic argued that because Filártiga had held that a government official may be liable under the ATCA, and
because Tel-Oren had held that a private actor could not be liable under the ATCA, the general rule must be that a
nonstate actor cannot be liable under the ATCA. [FN132] The court countered that Filártiga did not decide the
issue because it dealt with a government official and therefore did not preclude holding a nonstate actor liable under
the ATCA. [FN133] Distinguishing the Tel-Oren decision, however, was more difficult because the facts of TelOren were similar to the facts of the case at bar. [FN134] The court therefore responded to this attempted analogy by
narrowly construing the Tel-Oren holding, [FN135] claiming that Tel-Oren merely held that a nonstate actor could
not be liable under the ATCA for torture, and that it did not decide whether a nonstate actor could be liable for other
violations of international law. [FN136]
The court next tackled Karadzic's argument that Congress must have intended an implicit state-action requirement in the ATCA. Karadzic divined this intent from Congress's express provision for a state-action requirement in
the TVPA, which Congress had enacted to codify the developing ATCA case law. The court, however, turned to the
TVPA's legislative history to find that Congress did not intend it to replace the ATCA because there may exist other
violations of international law that may only be brought under the ATCA. [FN137] Thus, the court concluded that
the state-action requirement does not necessarily apply to all violations of the law of nations. This did not end the
court's inquiry, however, for it next had to determine whether the plaintiffs' specific allegations could constitute violations of international law when committed by nonstate actors.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 9
2. Specific Allegations. The court separated the allegations against Karadzic into three categories: (1) genocide, (2) war crimes, and (3) torture and summary execution. [FN138] The court had little trouble finding genocide a
violation of international customary law, citing several treaties, conventions, and United Nations Resolutions condemning genocide. [FN139] The court found especially relevant the Genocide Convention Implementation Act of
1987, [FN140] which not only criminalized genocide in the United States, but also posed no state-action requirement for individual criminal liability. [FN141] Therefore, the court concluded that there must be an international
norm allowing a nonstate actor to be held liable for genocide. [FN142]
Similarly, the court concluded that an individual may be liable for war crimes regardless of whether he was a
state actor under international customary law. [FN143] The court focused its analysis on the Geneva Conventions,
[FN144] which codify the international definition of war crimes and provide that any party may be liable even if the
war crimes are carried out in a conflict “not of an international character.” [FN145] The court interpreted this language as making the Geneva Conventions applicable to an insurgent military group regardless of whether the group
is representative of any recognized nation. [FN146] Furthermore, the court noted that individuals were held liable
for war crimes by the Nuremberg War Crimes Tribunal after World War II. [FN147] Thus the court found that
Karadzic could be liable for war crimes under international law even if he had not acted under color of state law.
With regard to torture and summary execution, however, the court held that the state-action requirement exists
principally because Congress included it in the TVPA, which expressly applies to claims of torture and summary
execution. [FN148] Yet, to the extent that such acts of torture and summary execution were conducted as part of a
genocidal campaign or as war crimes, the court held that they would be covered under the preceding analysis and
would therefore be actionable regardless of whether the perpetrator acted under color of state law. [FN149]
Applying this analysis to the case at bar, the court held that Karadzic could be liable for genocide and war
crimes regardless of whether he acted under color of state law. Karadzic could not be liable for torture and summary
execution, however, unless the state-action requirement was met. Consequently, the court proceeded to examine
whether the state-action requirement was satisfied in this case.
3. The State-Action Requirement. Because it had found a state-action requirement with respect to some of the
plaintiffs' claims, the court held that the plaintiffs were entitled to prove whether Karadzic's conduct satisfied that
requirement by proving either that Srpska qualified as a state or that Karadzic had acted in concert with Serbia.
[FN150] On the question of Srpska's qualification as a state, the court did not use official recognition as the test for
statehood; rather, the court endorsed the following definition from the Restatement (Third) of Foreign Relations
Law: “Under international law, a state is an entity that has a defined territory and a permanent population, under the
control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such
entities.” [FN151] The court observed that Srpska appeared to meet these requirements because “Srpska is alleged
to control defined territory, control populations within its power, and to have entered into agreements with other
governments. It has a president, a legislature, and its own currency.” [FN152] Thus, the court held that the plaintiffs
were entitled to an opportunity to prove whether Srpska satisfied the Restatement's definition of statehood. [FN153]
Alternatively, the court held that the plaintiffs could establish that Karadzic acted under color of state law inasmuch as his Bosnian-Serb forces received significant aid from the recognized nation of Serbia. The court held that
such a relationship would independently satisfy the state-action requirement by analogizing to the “color of law”
jurisprudence in civil rights litigation under 42 U.S.C. S 1983. [FN154] In the S 1983 context, when an individual
acts in concert with state officials or with significant state aid, the court considers him a state actor. [FN155] The
court felt that a similar analysis should apply to the case at bar such that if the plaintiffs could prove that Karadzic
acted in concert with Serbia or with significant Serbian aid, he could be deemed a state actor under the TVPA.
Therefore, the court held that the plaintiffs should be given the opportunity on remand to establish the requisite state
action under either of the aforementioned theories. [FN156]
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 10
4. The Torture Victim Protection Act (TVPA). Next, the court discussed the TVPA in order to clarify how it fit
into the subject matter jurisdiction analysis. The TVPA is not a jurisdictional statute, but merely a cause of action
statute allowing an individual to sue a foreign government official for torture or extra-judicial killing. Jurisdictional
authority came from either the ATCA or the general federal question jurisdiction statute. [FN157]
In hinting that jurisdiction would also be available under the general federal question jurisdiction statute, the
court reasoned that since the TVPA created a definitive cause of action, it can be considered a federal question. Because jurisdiction is available under the ATCA, however, the court declined to rule on this issue definitively. [FN158]
b. karadzic's other defenses: lack of personal jurisdiction,
improper service of process, and nonjusticiability [FN159]
The court then moved on to whether personal jurisdiction and proper service of process existed. It declined to
recognize any immunity from personal jurisdiction. In addition, the court noted that the U.N. Headquarters agreement did not provide Karadzic with protection from service of process because (1) he was not served within the district, (2) he was not a designated member of the United Nations, and (3) allowing service of process is not an impediment to transit to and from the United Nations. Finally, the court refused to recognize a “federal common law
immunity” for United Nations invitees. [FN160]
The court also ruled that this case was justiciable. Despite acknowledging the potentially sensitive matters of
diplomacy, which are usually reserved to the jurisdiction of the political branches, the court found neither a separation of powers problem nor a Baker v. Carr “political question” problem. [FN161] In passing, the court also noted
that no party identified a more suitable forum, so it did not dismiss the case under the doctrine of forum non conveniens. [FN162]
V. Analysis
Although the Second Circuit's ultimate disposition of the case was correct, its analysis and reasoning were
flawed. It correctly held that the district court had subject matter jurisdiction under the ATCA, but it based that
holding on its erroneous conclusion that the state-action requirement did not apply to Karadzic's conduct. Similarly,
the court correctly remanded the case, but it should not have remanded the case to determine Srpska's statehood or
the level of Serbian assistance. Rather, the court should have remanded the case for a proper consideration of forum
non conveniens.
a. the state-action requirement applies to genocide and war crimes
In holding that the district court had subject matter jurisdiction under the ATCA, the Second Circuit refused to
apply the fundamental principle, firmly embedded in federal law, that an individual may violate the law of nations
only if he acts pursuant to the authority of a state. [FN163] Indeed, the Second Circuit flatly stated that it disagreed
with the proposition that the law of nations binds only states. [FN164] In so concluding, however, the court ignored
the principles established in modern ATCA case law [FN165] and the implicit message Congress sent when it included the state-action requirement in the TVPA. [FN166] Instead, the court supported its conclusion by looking to
ancient piracy cases and the Restatement of Foreign Relations Law, and by resorting to a narrow reading of the
Filártiga [FN167] and Tel-Oren [FN168] cases.
The court first cited several early cases in which the Supreme Court held individuals criminally liable for piracy
to support its proposition that international law binds nonstate actors. [FN169] None of these cases, however, was
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 11
brought under the ATCA. Moreover, courts have long viewed piracy as an exception to the general rule that international law is not binding on individuals because piracy, by its nature, is not committed within the territory of any
sovereign; rather, it is committed on the high seas by transient perpetrators and therefore requires that all nations
have jurisdiction over the pirate when he is caught. [FN170] The acts at issue in Kadic, by contrast, all occurred
within the territorial boundaries of Bosnia and therefore are subject to Bosnian municipal law. Unlike piracy, these
acts are capable of being punished in the territory within which they were committed. Using the treatment of pirates
to justify applications of the ATCA to an individual nonstate actor requires a quantum leap in logic.
Similarly, the court relied on the principle of “universal jurisdiction” set forth in the Restatement of Foreign
Relations Law as evidence that international law binds nonstate actors. [FN171] The court observed that the Restatement provides for universal jurisdiction over a few especially egregious crimes--some of which, like piracy and
aircraft hijacking, are capable of being committed by nonstate actors. [FN172] Because the Restatement also includes genocide and war crimes among these offenses, the court concluded that genocide and war crimes must also
be punishable if committed by nonstate actors.
This conclusion, however, does not necessarily follow; indeed, the court ignored the unique nature of piracy and
hijacking crimes. As mentioned above, piracy is by definition an exception to the general rule that international law
does not bind nonstate actors because it is committed in international waters and not within the boundaries of any
particular sovereign. This same rationale applies to hijacking when it occurs in international airspace. By contrast,
the acts alleged in Kadic--genocide, torture, and war crimes--do not share this characteristic. When committed by a
private actor, these crimes are not difficult to prosecute within the jurisdiction in which they were committed. Moreover, these crimes become an international concern only when committed or condoned by a state. Thus,
the state-action requirement should apply to genocide, torture, and war crimes.
The Second Circuit also misconstrued the Filártiga and Tel-Oren cases so as not to conflict with its conclusion
that the law of nations binds nonstate actors. The court flatly stated that “nothing in Filártiga purports to preclude
such a result.” [FN173] This assertion is misleading, however, because the Filártiga opinion actually contains a
great deal of support for the proposition that international law binds only state actors. For instance, Judge Kaufman
described the international norm prohibiting torture as follows: “(T)here are few, if any, issues in international law
today on which opinion seems to be so united as the limitations on a state's power to torture persons held in its custody . . . . (A) state's treatment of its own citizens is a matter of international concern.” [FN174] Judge Kaufman
stressed that the universal criminalization of certain types of conduct does not necessarily make such conduct a violation of international law. In order for there to be a violation of an international norm, there must be, in addition to
universal condemnation, international concern:
(T)he mere fact that every nation's municipal law may prohibit theft does not incorporate “the Eighth Commandment, 'Thou Shalt not steal' . . . (into) the law of nations.” It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, . . . that a wrong generally recognized becomes an international law violation within the meaning of the statute. [FN175]
Additionally, Judge Kaufman accepted Judge Friendly's requirement that in order to violate “the law of nations,” the offending conduct must affect relations with a foreign state:
(A) violation of the law of nations arises only when there has been “a violation by one or more individuals of
those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign
state and (b) used by those states for their common good and/or in dealings inter se.” [FN176]
These passages clearly show that the Filártiga court recognized that international law is not binding on private
individuals. Moreover, any doubts about this conclusion were laid to rest by Judge Edwards's opinion in Tel-Oren v.
Libyan Arab Republic. [FN177]
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 12
The Second Circuit tried to downplay Tel-Oren by arguing that the Tel-Oren court merely found that torture
required state action to be a violation of international law; it said nothing about genocide and war crimes. [FN178]
Judge Edwards, however, clearly stated, “I adhere to the legal principles established in Filártiga . . . . I do not believe
the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on
states and persons acting under color of state law.” [FN179] Judge Edwards made no attempt to limit this holding to
torture; in fact, the Tel-Oren case involved not only claims of torture, but many other human rights violations as
well, including terrorism, genocide, war crimes, and hostage taking. [FN180] Indeed, much of the conduct alleged in
Tel-Oren is identical to the conduct alleged in Kadic. The Second Circuit's narrow interpretation of Tel-Oren thus
conveniently avoided this unfavorable similarity.
The court next had to address the implicit congressional approval of the state-action requirement arising from its
codification in the TVPA. The Second Circuit argued that Congress did not approve an overarching state-action
requirement in international law when it enacted the TVPA, but merely approved the requirement with respect to
torture and extrajudicial killing. [FN181] The court, however, failed to explain why torture and extrajudicial killing
are so different from other violations of international law that they should require state action and other violations
should not. As discussed previously, two principles underlie the TVPA's state-action requirement: (1) the axiom that
international law binds only states, and (2) the policy decision to limit potential TVPA defendants to state actors.
[FN182] These principles are equally applicable to other violations of international law such as genocide and war
crimes. The court did not explain why the state-action requirement should not apply to these other violations. Nevertheless, it argued that international law allows nonstate actors to be liable for committing genocide and war crimes.
In arguing that genocide is a violation of international law regardless of whether the perpetrator acts under
color of state law, the court confused the obligations incurred by a state in signing a treaty with violations of the law
of nations. The court argued that because the United States ratified the Genocide Convention, [FN183] which defines genocide as a crime regardless of whether the defendant was a state actor, there should be no state-action requirement for claims of genocide brought under the ATCA. [FN184] The Genocide Convention and the ATCA,
however, are separate and distinct bodies of law. The Genocide Convention defined genocide in order to provide a
guideline for states to criminalize it under their municipal law. Liability under the ATCA, by contrast, requires a
violation of the law of nations, not a violation of municipal law. By referring to the Genocide Convention to support
its argument, the court was juxtaposing international law with municipal law.
In addition, the Genocide Convention obligates a state to punish only those individuals who commit genocide
within its borders; it does not obligate a state to punish individuals who commit genocide abroad. [FN185] Thus, a
violation of this treaty does not occur when an individual commits genocide; rather, a violation occurs either when a
state fails to criminalize genocide within its municipal law or when a state itself commits genocide. [FN186] The
treaty obligates states, not individuals.
The United States complied with this treaty by codifying the crime of genocide. [FN187] Congress, however,
limited the scope of the crime to acts committed within the United States borders or by a “national of the United
States.” [FN188] Therefore, the statute would not apply to Karadzic's acts because he committed them outside the
United States borders, and he is not a “national of the United States.” Moreover, the statute provides no civil cause
of action for genocide. Thus, even if Karadzic's conduct fell within the statutory definition of “genocide,” the plaintiffs' claims would not be actionable under the ATCA. Indeed, the Second Circuit ignored the fact that Congress
could have provided for a cause of action but declined to do so. [FN189] Therefore, the court erred in concluding
that genocide may be actionable under the ATCA when committed by a nonstate actor.
The Second Circuit's conclusion that a nonstate actor may be liable for war crimes under the ATCA is hamstrung by these same problems. The court argued that because individuals were held liable for war crimes at the
Nuremberg trials, a nonstate actor may therefore be liable for war crimes generally. [FN190] This argument is
without merit for two reasons. First, the court failed to acknowledge that every defendant at the Nuremberg trials
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 13
had acted under color of law of a recognized state. [FN191] Traditionally,
war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on
capture of the offenders . . . . (T)o that extent the notion of war crimes is based on the view that States and their organs are subject to criminal responsibility under International Law. [FN192]
Second, the Nuremberg tribunal was convened as an ad hoc forum with special competence to hear war crimes
cases and only had jurisdiction over crimes that had no specific geographical location. [FN193] The Allies convened
the tribunal pursuant to their right under international law to punish belligerent war criminals. [FN194] Thus, only
enemy perpetrators were punished by foreign courts. [FN195] The unique and specialized nature of the Nuremberg
tribunal makes the Second Circuit's analogy inappropriate. There is no evidence that customary international law
reaches a totally private individual with respect to war crimes.
In reaching the conclusion that a private individual may be liable for genocide and war crimes under the ATCA,
the Second Circuit badly misinterpreted many aspects of international law. First, it ignored the fundamental principle that international law binds only states or individuals acting under state law. Second, the court confused the
principle of universal criminal jurisdiction with the civil jurisdiction conferred by the ATCA. Third, the court misconstrued ATCA federal case law by ignoring the fact that the state-action requirement has been consistently applied. Fourth, the court overlooked tacit congressional approval of the state-action requirement as demonstrated by
the enactment of the TVPA. Fifth, the court confused the treaty obligations imposed by the Genocide Convention
with the United States statute criminalizing genocide. Finally, the court used false logic to compare the Nuremberg
tribunal for war crimes to United States ATCA jurisprudence.
b. an insurgent military group is not an official state
The Second Circuit acknowledged that torture and extrajudicial killing fall within the purview of the TVPA and
therefore have a state-action requirement. [FN196] The court held that the plaintiffs were entitled to establish on
remand that this requirement was satisfied by showing either (1) that Srpska is a state or (2) that Karadzic had acted
under color of law of the recognized state of Serbia. [FN197]
Based on the plaintiffs' complaint alone, there should be no issue regarding Srpska's statehood--the plaintiffs
themselves acknowledge that Srpska is not an internationally recognized nation. [FN198] The court, however, buttressed its conclusion that Srpska might be a “state” by observing that Srpska has a defined territory. This observation conflicts with reality because any territory that Srpska possesses was obtained through force and is actually the
territory of the Bosnian state. [FN199] Moreover, the Statement of Interest of the United States declares that Srpska
is not a state, [FN200] and courts usually regard a determination of statehood by the executive branch as dispositive
of the statehood issue. [FN201] When such a determination is accepted by the court for the issue of sovereign immunity, it should apply to the other issues as well. Otherwise, if the district court determines on remand that Srpska
is indeed a state, Karadzic would then arguably be eligible for head of state immunity. [FN202] Even if he does not
qualify for such immunity, the court's recognition of Srpska's statehood would give a degree of undeserved legitimacy to the Bosnian Serbs' territorial acquisitions.
The Second Circuit also held that the assistance Karadzic received from Serbia may be sufficient to satisfy the
state-action requirement because he might then be deemed to have been acting under color of state law. [FN203]
The legislative history of the TVPA directs courts to look to principles of liability under 42 U.S.C. S 1983 in construing the phrase “color of law” in the TVPA. [FN204] The Second Circuit has interpreted this standard as requiring a plaintiff to allege that the challenged conduct was attributable to a person acting under color of state law.
[FN205] A private actor may satisfy this “color of law” standard if he “reached an understanding” with a state official regarding the prohibited conduct. [FN206] In Kadic, the court correctly pointed out that the district court failed
to consider the possibility that Karadzic had acted under Serbian law through an agreement with Serbian officials.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 14
[FN207] Although this possibility creates a plausible theory under which the court would have subject matter jurisdiction under the ATCA, this theory does not present the best solution. [FN208] That is, it does not address the peculiar nature of an insurgent military group. The liability of such groups for violations of international law should
not turn on the level of assistance they receive from recognized nations; rather, such groups should be treated as de
facto governments or quasi-state entities for the limited purpose of holding them accountable for human rights violations. [FN209]
c. forum non conveniens
A United States court should approach with suspicion any case brought by an alien against another alien based
on events that occurred in a foreign country. For obvious reasons, hearing such a case may pose logistical difficulties that would give rise to the doctrine of forum non conveniens. [FN210] The Second Circuit, however, did not
adequately consider whether this case should have been dismissed under the doctrine of forum non conveniens; instead, the court merely mentioned in passing that it was not aware of any alternative forum. [FN211] Such cavalier
treatment ignores many concerns that arise in a case with no substantial connection to the United States.
Indeed, although cases brought under the ATCA are usually well-intentioned, they often fall short of their
mark. The bulk of modern ATCA cases are brought in an attempt to “ensure that those responsible for (human
rights abuses) are held accountable,” [FN212] or to show the world that the United States is not a “safe haven” for
torturers. [FN213] Exercising jurisdiction over such cases does make a statement to the world that the United States
is concerned about redressing human rights violations. The federal court system, however, was not designed for this
purpose; it exists not for making statements, but for adjudicating “cases” and “controversies.” [FN214] Thus, the
goal of these cases is more properly stated as providing redress for victims of human rights abuses and prospectively
deterring such abuses.
A major problem in this respect is that the federal court system can be woefully inadequate for attaining this
goal when there is no substantial connection between the parties, the litigation, and the United States. For instance,
the defendant will frequently fail to appear, thereby resulting in the issuance of a default judgment. [FN215] Such a
judgment is practically worthless to the plaintiff unless the defendant has assets within the United States. Thus, the
plaintiff obtains no redress, the defendant is not deterred, the federal court system looks inept because it has been
snubbed by the defendant, and precious judicial resources have been wasted in the process. This is not to say that
these cases should never be brought; rather, it is merely to say that these concerns present good reasons to pay particular attention to the doctrine of forum non conveniens in such cases. These cases should be dismissed when a reasonably available alternate forum exists, especially if the defendant has no assets in the United States from which a
judgment can be paid. [FN216]
Although the Second Circuit should have more carefully considered the doctrine of forum non conveniens, it
nevertheless appears that the court was correct in saying that no reasonably available alternative forum exists in this
case. There are at least three alternative forums in which some or all of the plaintiffs' claims could theoretically be
heard: (1) the Bosnian courts, (2) the International War Crimes Tribunal at the Hague (IWCT), and (3) the International Court of Justice (ICJ). Although the Bosnian courts would probably be the most convenient forum, the Bosnian court system may not be fully functional due to the war-torn status of the country. [FN217] Similarly, although
both the IWCT and the ICJ functionally would be able to hear the plaintiffs' claims, neither forum seems particularly
suitable. The IWCT would be competent to determine only Karadzic's criminal liability with respect to the plaintiffs'
claims of genocide and war crimes. [FN218] The plaintiffs would be unable to sue Karadzic in the ICJ because the
ICJ is only competent to adjudicate disputes between states. [FN219] This problem could be overcome, however, if
the plaintiffs get the government of Bosnia to sue on their behalf. Although they could not sue Karadzic's Bosnian
Serbs directly, they could sue Serbia for its alleged assistance of Karadzic. [FN220] The existence of these potential
alternative forums would be unlikely to support dismissing the case under the doctrine of forum non conveniens;
however, in light of the serious policy concerns raised by hearing cases such as this in a United States forum, these
alternative forums should at least have been considered. Therefore, the Second Circuit should have instructed the
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 15
lower court, on remand, to consider carefully the availability of an alternative forum and whether the case should be
dismissed in favor of that forum. [FN221]
VI. An Alternate Analysis
All the problems with the Second Circuit's analysis may be traced to one source--the court's failure to consider
properly the role of an insurgent military group in international law. Karadzic's conduct as the leader of an insurgent
military group was neither state action nor purely private conduct, but rather was something in between. The question is thus how to deal with this type of conduct. As previously discussed, the Second Circuit handled this problem
by treating Karadzic as a private actor and dispensing with the state-action requirement for certain violations of international law. [FN222] Under this analysis, however, any individual in any territory may be sued in the United
States federal courts. The ATCA was clearly not intended to confer jurisdiction over such a broad class of claims.
The Second Circuit also held that even if the ATCA does contain a state-action requirement, the plaintiffs
should be allowed to prove on remand that Karadzic's conduct satisfied it by showing either that Srpska is a state or
that Karadzic acted in concert with Serbia. [FN223] Judicial recognition of Srpska's statehood, however, implicitly
legitimizes the Bosnian-Serb entity. Furthermore, although it might be plausible to hold that Karadzic's Serbian support satisfies the state-action requirement, such a theory ignores the unique status of the Bosnian-Serb entity.
The Bosnian-Serb entity may best be described as an insurgent military group that has seized control over a
limited amount of territory within the state of Bosnia. Thus, this group may be regarded as “(a) para-Statal (entity) .
. . possessing a limited form of international personality.” [FN224] In other words, the Bosnian-Serb entity may be
viewed as a de facto government with limited standing in the international community. [FN225] This limited standing does not equate the Bosnian-Serb entity with a state, but merely acknowledges that for certain purposes it has the
capacity to engage in international relations. [FN226] Karadzic's actions on behalf of this de facto government may
thus satisfy the state-action requirement for purposes of the ATCA. Thus, the ATCA could provide jurisdiction over
the alleged atrocities committed by Karadzic without disregarding the state-action requirement.
The benefits of this analysis are threefold: (1) it more accurately reflects reality; (2) it pays homage to the principle that international law does not bind individuals; and (3) it serves the policies associated with the state-action
requirement. This analysis more accurately reflects reality because Srpska is simply not a sovereign state. Its
boundaries are not determinable because all of its territory is actually within the boundaries of the internationally
recognized state of Bosnia. Its population is not permanent and its ability to engage in international relations is limited. Moreover, Srpska possesses its territory illegally because the Bosnian Serbs took it by force. Thus, deeming
Srpska a state would implicitly recognize its sovereignty and tacitly legitimize its territorial seizure. Therefore,
holding that Srpska is a state does not accurately reflect reality.
Treating the Bosnian-Serb entity as a de facto government respects the principle that international law binds
states and not individuals because it properly considers the international concerns about the conduct of Srpska without granting it statehood. Under traditional principles of international law, purely private conduct does not give rise
to international concern. It must be acknowledged, however, that no bright line exists between state action and
purely private conduct; rather, a spectrum of behavior exists with purely private behavior on one end and state conduct on the other. [FN227] The conduct of Karadzic and his Bosnian-Serb entity falls close to the state extreme but
stops somewhere short of it. The Second Circuit glosses over this distinction instead of dealing with it head on. The
better approach is to acknowledge explicitly the distinction, while recognizing that the conduct of an insurgent military group may rise to the level of international concern without technically being a state. [FN228]
Finally, treating the Bosnian-Serb entity as a de facto government also furthers the same policies as the stateaction requirement. [FN229] First, it holds the state-like entity of the Bosnian Serbs accountable for its egregious
behavior by holding its leaders accountable in United States federal courts. Second, it limits the number of potential
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 16
ATCA defendants because it does not reach purely private behavior. Finally, it prevents the United States from becoming a “safe haven” for human rights violators.
The Second Circuit glossed over the issue of how to treat an insurgent military group in international law. It
simply opted to deem the entity a state rather than acknowledging the unique nature of such a group. An insurgent
military group must be held accountable under international law, indeed. But while deeming it a state would make it
accountable, deeming it a state would also implicitly legitimize it. A more precise characterization of an insurgent
military group, which would recognize its standing solely for the purposes of holding it accountable under international law, makes more sense. Therefore, the court should have held that an insurgent military group may be
granted limited standing in international law for the purposes of holding it accountable for its conduct and thus allow
it to satisfy the state-action requirement.
VII. Conclusion
The Second Circuit correctly held that the conduct alleged in Kadic was actionable under the ATCA. Its reasoning, however, is problematic and should not be followed by other courts.
The mysterious background of the ATCA has left courts struggling to interpret it. Originally enacted to bestow
jurisdiction over special cases in the law of prize, the ATCA is now used primarily to allow United States federal
courts to hear international human rights cases. The ATCA by its own terms limits its jurisdictional grant to cases
involving violations of “the law of nations”--in other words, international law. Because international law involves
the relations among states, only a state is capable of violating international law. Individuals may be held accountable, however, if they acted on behalf of a state. In ATCA jurisprudence, this limitation became known as the “stateaction requirement.” Consequently, in order to bring a claim against an individual under the ATCA a plaintiff must
allege that an individual committed human rights violations in his capacity as a state actor. This requirement serves
to filter out claims that do not properly involve violations of international law. A difficult situation arises, however,
when an individual commits human rights violations not as a state actor, but rather as the leader of an insurgent military group.
The Second Circuit wrestled with this difficult issue in Kadic v. Karadzic. The Second Circuit correctly decided that such an individual may be sued under the ATCA, but it did so for the wrong reasons. It held that (1) the
state-action requirement does not apply to all violations of international law and (2) Karadzic may nevertheless be a
state actor either because the Bosnian-Serb entity of Srpska may be considered a state or because he acted with the
support of the recognized state of Serbia. This reasoning is incorrect jurisprudentially and has disturbing policy implications. It ignores the nature of international law as binding only on states and it allows international law to reach
private individuals, thus obliterating the important filtering effect of the state-action requirement. Moreover, allowing the insurgent military group to be considered a state confers unwarranted legitimacy upon such organizations. Finally, the liability of such groups should not turn on the level of assistance they receive from recognized
nations.
A better approach would be not only to acknowledge that the state-action requirement applies to all violations of
international law, but also to recognize the unique status of an insurgent military group as a de facto government or
quasi-state entity. Such groups should be deemed to satisfy the state-action requirement for the limited purpose of
holding them accountable under the ATCA for violations of international law. This approach retains the filtering
effect of the state-action requirement without tacitly legitimizing illegal territorial acquisition. Although this solution is unlikely to bring a halt to egregious behavior by such rogue entities, it will at least prevent them from using
their lack of recognition to evade responsibility for human rights abuses.
[FN1]. 28 U.S.C. S 1350 (1994). In its present form, the ATCA provides: “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
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 17
the United States.” Id.
[FN2]. Judiciary Act of 1789, ch. 20, S 9, 1 Stat. 73, 77 (current version, with minor changes, codified at 28 U.S.C.
S 1350 (1994)); see also, Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.
L. Rev. 49, 50 (1923) (arguing section 10 of Judiciary Act of 1789, later codified as section 9 and known as the
Alien Tort Claims Act, is “in all probability, in the handwriting of Oliver Ellsworth”).
[FN3]. See Joseph M. Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev.
445 (1995) (arguing history and purpose of ATCA demonstrate it is exclusively jurisdictional); see also, William R.
Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18
Conn. L. Rev. 467, 495-97 (1986) (discussing jurisdictional purpose of ATCA).
[FN4]. See infra part III.a (discussing ambiguity surrounding purpose of ATCA); see also IIT v. Vencap, Ltd., 519
F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.) (“This old but little used section is a kind of legal Lohengrin . . . no
one seems to know whence it came.”).
[FN5]. See Casto, supra note 3, at 467-68 (explaining reasons for mystery surrounding ATCA).
[FN6]. Id. at 468 (“(The ATCA) . . . quickly lapsed into desuetude.”).
[FN7]. Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
[FN8]. See Jean-Marie Simon, The Alien Tort Claims Act: Justice or Show Trials?, 11 B.U. Int'l L.J. 1, 28 (1993)
(“Since the Filártiga decision in 1980, the Alien Tort Claims Act has come to represent a . . . conduit for redress for
victims of human rights abuses.”).
[FN9]. 28 U.S.C. S 1350 (1994). The ATCA uses the antiquated term “law of nations,” which is now regarded as
synonymous with “international law.” See Black's Law Dictionary 886 (6th ed. 1990) (treating “law of nations” and
“international law” as synonyms).
[FN10]. Filártiga, 630 F.2d at 881. Customary law is a subset or a “source” of international law. The sources of international law were articulated by the United States Supreme Court in United States v. Smith, 18 U.S. (5 Wheat.)
153, 160-61 (1820). The modern concept of “sources” of international law is codified in the Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 1060. It provides: “(The sources of international law
are) . . . (a) international conventions . . . (b) international custom (customary law) . . . (c) general principles of law
recognized by civilized nations; (d) . . . judicial decisions and teaching of the most highly qualified publicists . . . .”
Id.
[FN11]. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C. Cir. 1985) (Scalia, J.) (intimating disdain for
international customary law).
[FN12]. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. S
1350 (1994)).
[FN13]. Id.
[FN14]. Id.
[FN15]. 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 18
[FN16]. Id. at 236.
[FN17]. Id.
[FN18]. Id.
[FN19]. Id. at 241-44.
[FN20]. As War Intensified, So Did Pressure on Serbs, USA Today, May 6, 1993, at 7A.
[FN21]. Bosnia War Chronology, The Reuter European Community Report, Dec. 19, 1993, available in LEXIS,
News Library, REUEC File.
[FN22]. U.S. Dep't of State, Country Reports on Human Rights Practices for 1993, prepared for U.S. Senate Committee on Foreign Relations, 103d Cong., 2d Sess. (Feb. 1994), at 806.
[FN23]. John F. Burns, Bosnians in Besieged Sarajevo Look Back on Year of Horror, N.Y. Times, Apr. 6, 1993, at
A1, A14.
[FN24]. Helsinki Watch, War Crimes in Bosnia-Herzegovina 22 (1992).
[FN25]. Kadic v. Karadzic, 70 F.3d 232, 236-38 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN26]. See Simon, supra note 8, at 4-5 (“(A)ttorneys have selectively invoked (the ATCA) to punish either individual rightwing officials or their governments . . . . (The main group is) the New York-based Center for Constitutional Rights (CCR) . . . .”); see also Joan Fitzpatrick, The Future of the Alien Tort Claims Act of 1789: Lessons
from in re Marcos Human Rights Litigation, 67 St. John's L. Rev. 491, 521 (1993) (relating background of Kadic v.
Karadzic). Often, CCR sues foreign leaders in United States courts under the ATCA and the TVPA. For example,
Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) is a case prosecuted by the Center for Constitutional
Rights under the ATCA. See also Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (brought by CCR under
ATCA against right-wing government official); Todd v. Panjaitan, No. Civ.A.92-12255-PBS, 1994 WL 827111 (D.
Mass. Oct. 26, 1994) (same); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (same); Abebe-Jiri v. Negewo, No.
1:90-CV-2010-GET, 1993 WL 814304 (N.D. Ga. Aug. 20, 1993) (same).
[FN27]. See Simon, supra note 8, at 27 (describing National Organization for Women as prosecuting claims in
Kadic v. Karadzic).
[FN28]. Kadic, 70 F.3d at 236-37. For a more detailed, graphic, and outright gory description of the atrocities alleged, see Michele Brandt, Comment, Doe v. Karadzic: Redressing Nonstate Acts of Gender-Specific Abuse Under
the Alien Tort Statute, 79 Minn. L. Rev. 1413, 1413-15 (1995).
[FN29]. Kadic, 70 F.3d at 237.
[FN30]. Id.
[FN31]. Id.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 19
[FN32]. Id.
[FN33]. Id.
[FN34]. Doe v. Karadzic, 866 F. Supp. 734, 736 (S.D.N.Y. 1994), rev'd sub nom. Kadic v. Karadzic, 70 F.3d 232
(2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN35]. Id.
[FN36]. 28 U.S.C. S 1350 (1994).
[FN37]. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. S 1350 (1994)).
[FN38]. 28 U.S.C. S 1331 (1994).
[FN39]. Karadzic, 866 F. Supp. at 738-43.
[FN40]. Id. at 742.
[FN41]. Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN42]. Id. The Second Circuit also rejected Karadzic's claims that service of process had been defective and that he
qualified for head-of-state immunity. Id. at 246-48.
[FN43]. Judiciary Act of 1789, ch. 20, S 9, 1 Stat. 73, 77.
[FN44]. See Charles A. Wright, Law of Federal Courts 3-5 (5th ed. 1994) (discussing history and purpose of Judiciary Act of 1789); see also Christopher W. Haffke, Note, The Torture Victim Protection Act: More Symbol Than
Substance, 43 Emory L.J. 1467, 1470-71 (1994) (discussing purpose of Judiciary Act of 1789).
[FN45]. Judiciary Act of 1789, ch. 20, S 9, 1 Stat. 73, 77.
[FN46]. See Sweeney, supra note 3, at 448 (“At the time (Oliver Ellsworth wrote the First Judiciary Act), the Constitution had just gone into effect, the new Congress had just convened, and he was the leader of the Senate committee appointed to prepare a bill for organizing the judicial system of the infant nation.”).
[FN47]. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).
[FN48]. See Tel-Oren v. Libyan Arab Rep., 726 F.2d 774, 782 (D.C. Cir. 1984) (Edwards, J., concurring) (describing purpose of Judiciary Act of 1789); see also Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S.
246, 249 (1951) (“The Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action,
but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions.”);
Dreyfus v. Von Finck, 534 F.2d 24, 28 (2d Cir. 1976) (holding that neither 28 U.S.C. S 1331 (federal question) nor
28 U.S.C. S 1350 (ATCA) creates cause of action).
[FN49]. See IIT, 519 F.2d at 1015 (lamenting lack of evidence regarding purpose of ATCA); accord SanchezEspinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985) (noting obscure purpose of ATCA); Tel-Oren, 726 F.2d at
777 (Edwards, J., concurring) (same); id. at 812 (Bork, J., concurring) (same); Cohen v. Hartman, 490 F. Supp. 517,
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 20
518 (S.D. Fla. 1980) (same), aff'd, 634 F.2d 318 (5th Cir. 1981).
[FN50]. See Casto, supra note 3, at 467-73 (describing need for interpreting ATCA's purpose); see also Sweeney,
supra note 3, at 445 (divining possible purpose of ATCA).
[FN51]. Sweeney, supra note 3.
[FN52]. See id. at 447 (arguing ATCA granted jurisdiction over alien's suit in “law of prize”); see also David J.
Bederman, The Feigned Demise of Prize, 9 Emory Int'l L. Rev. 31, 54-55 (1995) (describing meaning of phrase
“law of nations” in ATCA as applying only to “maritime law, most notably, questions of good and lawful prize”).
[FN53]. Sweeney, supra note 3, at 458-61; see also J. Franklin Jameson, The Predecessor of the Supreme Court, in
Essays in the Constitutional History of the United States in the Formative Period 1775-1789, at 1, 5 (J. Franklin
Jameson ed., Books for Libraries Press 1970) (1889).
[FN54]. Sweeney, supra note 3, at 451-83.
[FN55]. Id. at 447.
[FN56]. Id.
[FN57]. Id.
[FN58]. Id.
[FN59]. Id.
[FN60]. Id.
[FN61]. Moxon v. The Fanny, 17 F. Cas. 942, 943 (D. Pa. 1793) (No. 9895).
[FN62]. Id.
[FN63]. Id. at 947-48.
[FN64]. Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795) (No. 1607).
[FN65]. Id. at 810.
[FN66]. Id. at 811.
[FN67]. Casto, supra note 3, at 488-510 (proposing theory of original purpose of ATCA).
[FN68]. See id. at 491-94 (describing two incidents in which foreign ambassadors were denied justice in state courts
as impetus for ATCA).
[FN69]. Id.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 21
[FN70]. 4 William Blackstone, Commentaries *66, *68 (“The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violations of safe-conducts; 2. Infringement of the rights of ambassadors; and 3. Piracy.”).
[FN71]. Judiciary Act of 1789, ch. 20, S 9, 1 Stat. 73, 77 (emphasis added).
[FN72]. Casto, supra note 3, at 505.
[FN73]. Sweeney, supra note 3, at 447. But see Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996) (concluding Professor Sweeney's article is “interesting, but far from conclusive” and denying plaintiff's petition for rehearing).
[FN74]. Id.
[FN75]. Id.
[FN76]. See Simon, supra note 8, at 38 (“(T)he Alien Tort Statute does not provide the tort claim; the claim must
arise through an independent statute or common law.” (citing Montana-Dakota Utils. Co. v. Northwestern Pub. Serv.
Co., 341 U.S. 246, 249 (1950))).
[FN77]. 630 F.2d 876 (2d Cir. 1980).
[FN78]. See Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (recognizing jurisdiction under ATCA).
[FN79]. The Filártiga court described the reason for the lack of case law as follows: “The paucity of suits successfully maintained under the section is readily attributable to the statute's requirement of alleging a 'violation of the
law of nations' . . . at the jurisdictional threshold.” Filártiga, 630 F.2d at 887.
[FN80]. See Casto, supra note 3, at 468-69 (“The paradigm for current litigation under (the ATCA) is Filártiga v.
Peña-Irala . . . .”); Simon, supra note 8, at 21 (“Following the successful appeal of Filártiga in 1980, the Alien Tort
Statute became the legal foundation for some two dozen lawsuits . . . .” (footnote omitted)).
[FN81]. Filártiga, 630 F.2d at 887.
[FN82]. Tel-Oren v. Libyan Arab Rep., 726 F.2d 774, 777 (D.C. Cir. 1984) (Edwards, J., concurring).
[FN83]. Id.
[FN84]. Id.
[FN85]. See Filártiga, 630 F.2d at 887 (stating violation of law of nations requirement limits number of cases
brought).
[FN86]. See id. at 880 (“(T)he renunciation of torture as an instrument of official policy by virtually all of the nations of the world . . . (leads us to conclude) that an act of torture committed by a state official . . . violates established norms of the international law of human rights, and hence the law of nations.”).
[FN87]. Personal jurisdiction is another major limitation. The defendant must either have significant contacts with
the United States or be physically present in the United States when served with process in order for United States
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 22
courts to have personal jurisdiction. Furthermore, there are numerous immunities which may interfere with the
courts' personal jurisdiction, such as head-of-state immunity, diplomatic immunity, and immunity under the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. S 1605 (1994). See Caroline D. Krass, Bringing the Perpetrators of
Rape in the Balkans to Justice: Time for an International Criminal Court, 22 Denv. J. Int'l L. & Pol'y 317, 325-36
(listing obstacles plaintiffs face under ATCA).
[FN88]. 726 F.2d 774 (D.C. Cir. 1984) (Edwards, J., concurring).
[FN89]. Id. at 775.
[FN90]. Id.; see also Laura Wishik, Recent Development, Separation of Powers and Adjudication of Human Rights
Claims Under the Alien Tort Claims Act--Hanoch Tel-Oren v. Libyan Arab Republic, 60 Wash. L. Rev. 697, 697
(1985) (describing the holding of Tel-Oren case).
[FN91]. Tel-Oren, 726 F.2d at 776.
[FN92]. 369 U.S. 186, 226-36 (1962) (iterating factors judges should consider in deciding whether a case should be
dismissed under the political-question doctrine). For a brief discussion of the doctrine, see Wright, supra note 44, S
14.
[FN93]. Tel-Oren, 726 F.2d at 823 (Robb, J., concurring); see also Wishik, supra note 90, at 701-04 (analyzing political-question doctrine on which Judge Robb based his opinion).
[FN94]. Tel-Oren, 726 F.2d at 798 (Bork, J., concurring); see also id. at 780 (Edwards, J., concurring) (describing
Judge Bork's opinion).
[FN95]. Id. at 801 (Bork, J., concurring); id. at 823 (Robb, J., concurring).
[FN96]. See Haffke, supra note 44, at 1481 (“(T)he TVPA was adopted partially as a response to Judge Bork's criticisms of the ATCA.”); see also Torture Victim Protection Act of 1989: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the Comm. on the Judiciary, 101st Cong., 2d Sess. 32-33, 65 (1990) (statements of
Senator Spector) (stating purpose of TVPA and citing Tel-Oren, 726 F.2d at 801 (Bork, J., concurring)).
[FN97]. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. S 1350 (1994)).
[FN98]. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988).
[FN99]. See Haffke, supra note 44, at 1476-79 (describing purposes of TVPA).
[FN100]. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. S 1350 (1994)).
[FN101]. See S. Rep. No. 249, 102d Cong., 1st Sess. 3 (1991).
[FN102]. See id. at 8 (“In order for a defendant to be liable, the torture or extrajudicial killing must have been taken
'under actual or apparent authority or under color of law of a foreign nation.' Consequently, this legislation does not
cover purely private criminal acts by individuals or nongovernmental organizations.”).
[FN103]. See id. at 4-5 (“Judge Robert H. Bork questioned the existence of a private right of action under the Alien
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 23
Tort Claims Act . . . . The TVPA would provide such a grant.”).
[FN104]. See Haffke, supra note 44, at 1482-83 (describing how TVPA impliedly repealed ATCA).
[FN105]. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C. Cir. 1985) (Scalia, J.) (“As for the law of
nations . . . 'customary international law,' . . . we conclude that this also does not reach private, nonstate conduct for
the reasons stated by Judge Edwards in Tel-Oren . . . .”) (citing Tel-Oren v. Libyan Arab Rep., 726 F.2d 774, 791-96
(1984) (Edwards, J., concurring); id. at 807 (Bork, J., concurring)).
[FN106]. Banco National de Cuba v. Sabbatino, 376 U.S. 398, 422 (1964).
[FN107]. Tel-Oren, 726 F.2d at 792 n.22 (Edwards, J., concurring) (citing Brierly, The Law of Nations 1 (6th ed.
1963)); accord Carmichael v. United Technologies Corp., 835 F.2d 109, 113 (5th Cir. 1988) (stating that international law applies only to states).
[FN108]. Doe v. Karadzic 866 F. Supp 734, 739 (S.D.N.Y. 1994), rev'd sub nom. Kadic v. Karadzic, 70 F.3d 232
(2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN109]. Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980); see also supra part III.b.1 (describing Filártiga case).
[FN110]. See In re Estate of Marcos, 978 F.2d 493 (9th Cir. 1992) (recognizing cause of action against government
official); Siderman de Blake v. Republic of Arg., 965 F.2d 699 (9th Cir. 1992) (same); Forti v. Suarez-Mason, 672
F. Supp. 1531 (N.D. Cal. 1987) (same).
[FN111]. 726 F.2d 774 (D.C. Cir 1984); see also supra part III.b.2 (discussing Tel-Oren case); Carmichael v. United
Technologies Corp., 835 F.2d 109, 113 (5th Cir. 1988) (“(T)he Alien Tort Statute does not confer subject matter
jurisdiction over private parties . . . .”).
[FN112]. 770 F.2d 202 (D.C. Cir. 1985).
[FN113]. Id. at 206-07 (citations omitted).
[FN114]. See supra, part III.c. (discussing TVPA codification of state-action requirement).
[FN115]. This becomes evident in a thorough examination of the legislative history of the TVPA. Senator Specter,
the sponsor of the TVPA, said that it was necessary because, “(w)hile nearly every nation now condemns torture and
extrajudicial killing in principle, in practice more than one-third of the world's governments engage in, tolerate, or
condone such acts.” S. Rep. No. 249, 102d Cong., 1st Sess. 3 (1991) (emphasis added). Certainly, the emphasis on
forcing nations to comply with international law was a pervasive theme throughout the hearings leading up to the
enactment of the TVPA. For example, a consistent question senators posed to witnesses testifying before the Senate
Subcommittee on Immigration and Refugee Affairs during its June 22, 1990 hearing on the TVPA was what effect
the proposed legislation would have on renegade nations such as Libya. See Torture Victim Protection Act of 1989:
Hearing Before the Sen. Subcomm. on Immigration and Refugee Affairs of the Committee on the Judiciary, 101st
Cong., 2d Sess. 60-65 (1990) (hereinafter TVPA Hearings) (Senator Simon: “Is Libya going to approve the U.N.
Convention Against Torture? . . .”; Senator Spector: “So then someone who is tortured in Libya has no redress under
the convention? . . .”; Statement of Senator Edward M. Kennedy: “(N)ot all governments abide by international
standards . . . . (T)hese officials consider themselves above the law and beyond the reach of any civilized sanction.”). This concern with holding nations accountable is consistent with holding state actors accountable under the
law of nations; by the same token, it is inconsistent with holding private actors accountable.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 24
[FN116]. S. Rep. No. 249, 102d Cong., 1st Sess. 6-8 (1991). The legislative history of the TVPA provides that “this
legislation does not cover purely private criminal acts by individuals or nongovernmental organizations.” Id. at 8.
The policy implications of the state-action requirement were addressed during the Senate Hearings. Witnesses representing the Department of Justice and Department of State alluded to the problem that the TVPA might open the
floodgates of litigation. When asked by Senator Specter to respond to this concern, a witness answered, “(I)n response to your question about the size of the floodgates of litigation which were very gently alluded to by the administration witnesses, . . . the torturer must be acting under the actual or apparent authority of a foreign nation . . .
.” TVPA Hearing, supra note 115, at 64-65 (questioning three-member panel consisting of John Stattuk, representing
Amnesty International, Father Robert Drinan, professor of law at Georgetown University, and Michael Posner, representing the American Bar Association).
[FN117]. Statement by President George Bush upon Signing P.L. 102-256, Torture Victim Protection Act of 1991,
reprinted in 1992 U.S.C.C.A.N. 91 (Mar. 12, 1992).
[FN118]. Because it found specific statutory jurisdiction, the court refused to decide whether the district court also
had federal-question jurisdiction under 28 U.S.C. S 1331.
[FN119]. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN120]. Id. at 238 (citing Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)).
[FN121]. Id.
[FN122]. Id.
[FN123]. Id.
[FN124]. Id.
[FN125]. Id.
[FN126]. Id. at 239.
[FN127]. Id. (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 161 (1820); United States v. Furlong, 18 U.S. (5
Wheat.) 184, 196-197 (1820); The Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844)).
[FN128]. Id. (citing Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795)).
[FN129]. Id. at 239-40 (citing Statement of Interest of the United States, at 5-13).
[FN130]. Restatement (Third) of the Foreign Relations Law of the United States S 404 (1986).
[FN131]. Kadic, 70 F.3d at 238.
[FN132]. Id.
[FN133]. Id. at 240.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 25
[FN134]. See supra part III.b.2 (describing facts of Tel-Oren).
[FN135]. Kadic, 70 F.3d at 240.
[FN136]. Id.
[FN137]. The court quoted the section of the House Report which reads: “(The ATCA) has other important uses and
should not be replaced . . . . (One such use is) to permit suits based on other norms that already exist or may ripen in
the future into rules of customary law.” H.R. Rep. No. 102-367, 102d Cong., 2d Sess. 4 (1991), reprinted in 1992
U.S.C.C.A.N. 84, 86.
[FN138]. Kadic, 70 F.3d at 241-44.
[FN139]. Id. at 241 (citing G.A. Res. 96(I), 1 U.N. GAOR, 1st Sess., at 188-89, U.N. Doc. A/64/Add.1 (1946)).
[FN140]. 18 U.S.C. S 1091 (1994).
[FN141]. Kadic, 70 F.3d at 242.
[FN142]. Id.
[FN143]. Id. at 243.
[FN144]. The court cited the following: Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, entered into force Oct. 21, 1950, for the United States Feb. 2, 1956, 6 U.S.T. 3114,
T.I.A.S. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, entered into force Oct. 21, 1950, for the United States Feb. 2, 1956, 6
U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, entered into
force Oct. 21, 1950, for the United States Feb. 2, 1956, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135; Convention
Relative to the Protection of Civilian Persons in Time of War, entered into force Oct. 21, 1950, for the United States
Feb. 2, 1956, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287.
[FN145]. Kadic, 70 F.3d at 242 (quoting U.S. Dep't of State, Treaties in Force 398-99 (1994)).
[FN146]. Id. at 243.
[FN147]. Id. (citing Telford Taylor, Nuremberg Trials: War Crimes and International Law, 450 Int'l Conciliation
304 (1949)).
[FN148]. Id.
[FN149]. Id. at 244.
[FN150]. Id. at 244-45.
[FN151]. Restatement (Third) of Foreign Relations Law of the United States S 201.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 26
[FN152]. Kadic, 70 F.3d at 245.
[FN153]. Id.
[FN154]. Id. at 245.
[FN155]. Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).
[FN156]. Kadic, 70 F.3d at 245.
[FN157]. 28 U.S.C. S 1331 (1994).
[FN158]. Kadic, 70 F.3d at 246.
[FN159]. This Comment does not analyze the court's holding with regard to the personal jurisdiction and justiciability issues because those issues are beyond its scope. The doctrine of forum non conveniens, however, is analyzed in
the next section.
[FN160]. Id. at 246-48.
[FN161]. Baker v. Carr, 369 U.S. 186, 226-36 (1962) (discussing analysis for determining whether a case is a nonjusticiable political question).
[FN162]. Kadic, 70 F.3d at 248-50.
[FN163]. See supra part III.d (demonstrating state-action requirement in international law as applied in United States
federal courts).
[FN164]. Kadic, 70 F.3d at 239 (“We do not agree that the law of nations, as understood in the modern era, confines
its reach to state action.”).
[FN165]. See supra part III.b (discussing case law under ATCA and demonstrating existence of state-action requirement).
[FN166]. See supra part III.c (arguing that enactment of TVPA was tacit congressional approval of state-action requirement).
[FN167]. Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
[FN168]. Tel-Oren v. Libyan Arab Rep., 726 F.2d 774 (D.C. Cir. 1984).
[FN169]. Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995) (citing United States v. Smith, 18 U.S. (5 Wheat.) 153,
161 (1820); United States v. Furlong, 18 U.S. (5 Wheat.) 184, 196-97 (1820); The Brig Malek Adhel, 43 U.S. (2
How.) 210, 232 (1844)), cert. denied, 116 S. Ct. 2524 (1996).
[FN170]. See 1 L. Oppenheim, International Law S 272, at 609 (H. Lauterpacht ed., 8th ed. 1955) (“Before International Law in the modern sense of the term was in existence, a pirate was already considered an outlaw, a 'hostis
humani generis.' According to the Law of Nations the act of piracy makes the pirate lose the protection of his home
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 27
State . . . . Piracy is a so-called 'international crime'; the pirate is considered the enemy of every State, and can be
brought to justice anywhere.” (footnote omitted)).
[FN171]. Restatement (Third) of the Foreign Relations Law of the United States S 404.
[FN172]. Kadic, 70 F.3d at 240 (citing Restatement (Third) of the Foreign Relations Law of the United States S 702,
S 404).
[FN173]. Id.
[FN174]. Filártiga v. Peña-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (emphasis added).
[FN175]. Id. at 888 (quoting IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)).
[FN176]. Id. (citing IIT, 519 F.2d at 1015 (quoting Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 297
(E.D. Pa. 1963))).
[FN177]. 726 F.2d 774 (D.C. Cir. 1984).
[FN178]. Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN179]. Tel-Oren, 726 F.2d at 776 (Edwards, J., concurring).
[FN180]. See id. at 800 (Bork, J., concurring) (stating Count III of Complaint alleges violations of treaties); id. at
808-09 (listing treaties defendant accused of violating, including genocide, war crimes, terrorism, and other human
rights treaties).
[FN181]. Kadic, 70 F.3d at 241.
[FN182]. See supra part III.c (discussing rationale for state-action requirement in TVPA).
[FN183]. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277
(hereinafter Genocide Convention).
[FN184]. Kadic, 70 F.3d at 241-42; see also supra notes 139-142 and accompanying text (describing court's argument that state-action requirement does not apply to genocide).
[FN185]. See Genocide Convention, supra note 183, at 280-82 (“(P)ersons charged with genocide shall be tried by a
competent tribunal of the state in the territory of which the act was committed or by such international penal tribunal
as may have jurisdiction . . . .”).
[FN186]. See id. at art. IX (“Disputes between the Contracting Parties relating to the . . . fulfillment of the present
Convention, including those relating to the responsibility of a State for genocide or for any other acts enumerated in
article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”).
[FN187]. 18 U.S.C. S 1091 (1994).
[FN188]. Id.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 28
[FN189]. See H.R. Rep. No. 566, 100th Cong., 2d Sess. 8 (1988) (“(T)he bill creates no new federal cause of action
in civil proceedings.”).
[FN190]. Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN191]. Indeed, almost by definition, one must be acting under state law to commit war crimes. See Louis Henkin
et al., International Law 380 (3d ed. 1993) (describing Geneva Convention's prescribed remedy for war crimes as
authorization for belligerent state to try individual members of enemy forces for violations). Because one element of
a war crime is commission by a belligerent in an armed conflict, it is hard to imagine a purely private actor committing war crimes. Indeed, this observation illustrates the unique nature of Karadzic's Bosnian-Serb entity: it is statelike enough to prosecute a civil war, but it is not a recognized state. The solution to this problem, however, is not to
pretend that a private actor may be liable for war crimes under international customary law. Rather, the solution is to
treat Karadzic's insurgent military group as a de facto government that can be treated as a state for purposes of holding it accountable under international law. See infra part VI (suggesting Bosnian Serbs be treated as de facto government).
[FN192]. 2 L. Oppenheim, International Law S 251, at 566-67 (H. Lauterpacht ed., 7th ed. 1952).
[FN193]. See id. at 582 (“(T)he International Military Tribunal at Nuremberg exercised jurisdiction over accused
whose crimes had no specific 'geographical location.' “).
[FN194]. See id. at 587 (“The right of the belligerent to punish, during the war, such war criminals as fall into his
hands is a well-recognized principle of International Law.”).
[FN195]. Id.; United Nations War Crimes Commission, History of the United Nations War Crimes Commission 107
(1948).
[FN196]. Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996); see also supra
part IV.a.2 (discussing court's conclusion state-action requirement applied to torture).
[FN197]. Kadic, 70 F.3d at 245; see also supra part IV.a.3 (discussing court's remand of case). At this point, it must
be noted that the court mentioned a possible distinction between “recognized” and “unrecognized” states. This concept is similar to the analysis infra part VI. The court abandoned this concept, however, and rested its holding on the
idea that Srpska could be deemed a state.
[FN198]. See Doe v. Karadzic, 866 F. Supp. 734, 736 (S.D.N.Y 1994) (citing Doe Mem. at 4 n.3; Doe Compl. æ
15), rev'd sub nom. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN199]. See S.C. Res. 713, U.N. SCOR, 46th Sess., 3009th mtg. at 3, U.N. Doc. S/RES/713 (Readex 1991) (noting
international community's refusal to recognize territorial gains resulting from force). The Bosnian-Serb entity may
be analogized to the illegal state of Rhodesia in which a “racist settler minority” unlawfully seized power from Great
Britain in the 1960s. See Resolution Concerning Southern Rhodesia, Security Council of the United Nations, U.N.
SCOR, 20th Sess., 1265th mtg. at 3-8, U.N. Doc. S/PV.1265 (1965). Because its founders seized power illegally and
committed human rights abuses, the international community refused to recognize Rhodesia's statehood even if it
were to meet all of the requirements. Id.
[FN200]. Appellee's Petition for Rehearing and Suggestion for Rehearing In Banc at 10, Kadic v. Karadzic, 70 F.3d
232 (2d Cir. 1995) (No. 94-9069) (citing Statement of Interest of the United States at 3 (signed by the Solicitor Gen-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 29
eral and the State Department's Legal Advisor)).
[FN201]. See, e.g., Lafontant v. Aristide 844 F. Supp. 128, 131 (E.D.N.Y. 1994) (granting immunity to leader of
Haiti after determination by state department); Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988) (using executive
branch recognition of statehood in granting immunity to Prime Minister of England in suit alleging violations of
international law), order aff'd in part and rev'd in part (on other grounds), 886 F.2d 438 (D.C. Cir. 1989), cert. denied, 495 U.S. 932 (1990).
[FN202]. See Krass, supra note 87, at 327 n.65 (“Although the executive branch has stated that it will not accord
Karadzic immunity on a discretionary basis, it has not ruled out the possibility that either a treaty or customary international law will confer immunity on Karadzic.”) (citing Letter from Robert A. Bradtke, Acting Assistant
Secretary of Legislative Affairs, Dep't of State, to Senator Dole (Mar. 1993)); see also id. at 327 n.64 (“(I)f Karadzic
can demonstrate that he was acting in his official capacity as an agent or instrumentality of a foreign state, he may
be immune under the Foreign Sovereign Immunities Act.”).
[FN203]. Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996).
[FN204]. S. Rep. No. 249, 102d Cong., 1st Sess. 7 (1991).
[FN205]. See, e.g., Dwares v. City of New York, 985 F.2d 94, 97 (2d Cir. 1993) (interpreting color of state law
standard in civil rights case).
[FN206]. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); see also Lugar v. Edmonson Oil Co., 457 U.S.
922, 937 (1982) (declaring that individual acts under “color of law” when aided by state official).
[FN207]. See Kadic, 70 F.3d at 237-38 (“The Court did not consider the plaintiffs' alternative claim that Karadzic
acted under color of law by acting in concert with the Serbian Republic.”).
[FN208]. It is open to question, however, whether Congress actually intended for aid from a state to satisfy the color
of law requirement of the TVPA. If mere allegations of assistance are enough, then the state-action requirement
would be easily circumvented. A plaintiff could sue a private actor under the ATCA by merely alleging that he was
assisted by a state official of another country.
[FN209]. See infra part VI (advocating treatment of insurgent military group as quasi-state entity).
[FN210]. See Piper v. Reyno, 454 U.S. 235, 238 (1981) (applying forum non conveniens to dismiss case against
foreign defendant).
[FN211]. Kadic, 70 F.3d at 250.
[FN212]. Brandt, supra note 28, at 1421.
[FN213]. S. Rep. No. 249, 102d Cong., 1st Sess. 2 (1991).
[FN214]. U.S. Const. art. III, S 2, cl. 1.
[FN215]. See Simon, supra note 8, at 3 (“Almost none of the dozen claims brought under the (ATCA) was ever litigated on the merits. Courts summarily granted plaintiffs default judgements . . . .”).
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 30
[FN216]. See Krass, supra note 87, at 324-29 (discussing difficulties plaintiffs encounter in attempting to obtain
redress in United States courts).
[FN217]. See U.S. Dept. of State, Country Reports on Human Rights Practices for 1993, at 809 (Feb. 1994) (submitted to the Senate and House of Representatives Committees on Foreign Relations, 103d Cong., 2d Sess.) (describing
a functioning but struggling Bosnian court system).
[FN218]. See Balkans War-Crimes Commission Resolution, S.C. Res. 780, U.N. SCOR, 47th Sess., 1992 S.C. Res.
and Dec. at 36, U.N. Doc. S/INF/48 (establishing war crimes tribunal for Bosnia). In a perfect world, the IWCT
would have a civil component, enabling victims to obtain compensation at the same time that criminal liability is
being proven. Unfortunately, compensation is not presently available from the IWCT.
[FN219]. Statute for the International Court of Justice, 59 Stat. 1055 (1945).
[FN220]. Indeed, the nation of Bosnia-Herzegovina has already sued Serbia and Montenegro for assisting the Bosnian Serbs. Bosnia v. Yugoslavia, 1993 I.C.J. 3 (Apr. 8), reprinted in 87 Am. J. Int'l L. 505, 519 (1993).
[FN221]. This issue highlights the lack of effective enforcement mechanisms in international law. Some commentators have recommended the establishment of an international court system to hear private disputes. See Krass, supra
note 87, at 317 (advocating creation of international criminal court); see also Simon, supra note 8, at 79 (describing
human rights cases brought under ATCA as ineffective such that “new ways of seeking adjudication for international human rights abuses (remain) untested and unacknowledged, and victims and their families (are) denied the
complete justice they deserve”).
[FN222]. See supra part III (discussing Second Circuit's analysis in Kadic). The Court did mention in dicta the possibility of treating Srpska as an “unrecognized” state. Kadic, 70 F.3d at 244. It abandoned this idea, however, in favor of treating Srpska as a “state.” Id.
[FN223]. See supra part III (discussing Second Circuit's analysis in Kadic).
[FN224]. G.G. Fitzmaurice, Law of Treaties, (1958) 2 Y.B. Int'l L. Comm'n 24, U.N. Doc. A/CN.4/115. Mr. Fitzmaurice was referring to a limited form of standing in international law that is granted to insurgent military groups
for the purpose of making treaties, allowing these groups to be bound by the treaties that they sign. Similarly, this
principle may also be applied to holding insurgent military groups responsible for human rights abuses that they
commit.
[FN225]. See Henkin, supra note 191, at 271 (describing how insurgent groups can be considered de facto governments with limited standing in International Law).
[FN226]. See id. at 271 (citing examples of de facto governments in Cambodia and Laos signing treaties).
[FN227]. See id. at xvii (“From some perspectives, no doubt, (exclusions of certain international groups from international law) seem artificial. Some have insisted that contemporary international relations, surely, consist of much
more than official relations between states or their governments; that even these relations cannot be understood in
isolation from relations involving other actors.”).
[FN228]. This conclusion is supported by an analogy to illegal states. There is a fine line between the Bosnian-Serb
entity and an illegal state. An illegal state is one that meets all the requirements of a state but is not recognized as a
state because it seized power illegally. See supra note 199 (analogizing to illegal state of Rhodesia). Although illegal
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
31 GALR 281
31 Ga. L. Rev. 281
Page 31
states are not recognized officially, they are held accountable under international law. See Henkin, supra note 191, at
259 (“Non-recognizing states have not hesitated to charge entities which they do not recognize as states with violations of international law.”). The United States, for example, charged North Korea (which it did not recognize as a
state) with illegal action when North Korea seized the U.S.S. Pueblo in 1968. See 58 Dep't St. Bull. 196-97 (1968);
Mugerwa, Subjects of International Law, in Manual of Public International Law 269 (Sorensen ed., 1968).
Similarly, although the Bosnian-Serb entity is not a recognized state, it could be held accountable under international law. This can be translated into allowing the Bosnian-Serb entity itself to satisfy the state-action requirement
under the ATCA. Indeed, this analysis could have been utilized by the District of Columbia Circuit in Tel-Oren. See
supra part III.b.2 (discussing Tel-Oren case). The conduct of the PLO falls somewhere between private conduct and
state conduct on the aforementioned spectrum of behavior. Because the PLO's conduct (at least at the time Tel-Oren
was decided) was closer to the private end, however, it did not satisfy the state-action requirement.
[FN229]. See supra notes 114-117 and accompanying text (describing policy concerns of state-action requirement).
31 Ga. L. Rev. 281
END OF DOCUMENT
Reprinted from Westlaw with permission of Thomson Reuters/West. If you wish to check the currency of this case,
you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.