Terror Takes the Stand

Harvard International Law Journal,
Vol. 42, No. 1, Winter 2001, Cambridge

Before terrorists attacked the United States in September 2001, few Americans would have cared about an obscure international convention addressing the enforcement of civil judgments abroad. Now they should. Even while the U.S. press and public debate the merits of military tribunals, U.S. lawyers are quietly filing civil suits under federal laws designed to hold foreign terrorists accountable for their crimes. Key to the success of these suits will be the ability of domestic courts to obtain jurisdiction over defendants operating abroad. Yet the latest draft of the Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters — currently being negotiated in The Hague among 45 countries, including the United States — could close the door on future plaintiffs seeking similar compensation.

Northern California lawyer Beth Van Schaack analyzes the convention in the semiannual Harvard International Law Journal. Writing before the September 11 attacks, Van Schaack explains how U.S. plaintiffs’ lawyers are increasingly using civil actions to enforce international law. She argues that the resulting damage awards can help address human rights abuses that domestic and international courts have hitherto been powerless to punish. Van Schaack worries that the limits the convention puts on liability for international crimes may compromise an important venue for the advancement of human rights.

Such "plaintiff’s diplomacy," as some scholars have called it, is a growing legal field. The most commonly used — and most controversial — of the relevant U.S. laws is the Alien Tort Claims Act. Originally passed in 1789 to combat piracy, the law was given new life in 1980 when a federal appeals court ruled the law could be used to sue a Paraguayan police officer who murdered a Paraguayan suspect in violation of international human rights norms. Since then, victims have sued foreign states, dictators, and multinational corporations for acts of torture, terrorism, and environmental destruction. Some European countries have also passed domestic laws allowing private citizens to sue foreign defendants accused of international crimes. Belgium, for example, recently enabled domestic courts to hear cases of genocide and crimes against humanity, regardless of where the crimes occurred.

In practice, actual money damages are almost impossible to collect. Plaintiffs in such suits typically hope to gain publicity for their plight and a moral victory in court. As Van Schaack notes, these symbolic gains are often the most justice victims of foreign-sponsored atrocities can get. Few of these suits would be possible, however, if not for a body of court decisions granting jurisdiction over foreign human rights abusers. The United States is largely unique in permitting defendants to be served simply by setting foot in the country — as Chinese Prime Minister Li Peng discovered in September 2000 when he was served with a court summons in the Waldorf Astoria parking garage in New York City. Elsewhere, a defendant typically must live in or have extensive ties to a state before being subject to its jurisdiction.

The convention — in progress since May 1992 — threatens to undo some of these gains. As initially drafted, the convention would prohibit U.S. plaintiffs from collecting money abroad from defendants with a merely transient presence in the United States. Van Schaack points out several additional flaws in the draft text: One provision would bar recognition of judgments if plaintiffs have not exhausted all remedies available in their home countries. This restriction would shelter human rights abusers who operate in states that promote or condone the very abuses for which victims seek compensation. Also, the draft convention only recognizes human rights suits that address the gravest violations of international law, such as genocide and war crimes. Left uncovered would be more novel suits like those currently under way against Texaco for dumping toxic waste in Ecuador or against Del Monte for undermining the health of Nicaraguan plantation workers.

Critics argue that civil courts and international diplomacy should not mix. Indeed, international law was originally designed to protect nation-states, not individuals. But Van Schaack notes the difficulty that the international community has had in obtaining justice for even the most egregious international crimes. Civil courts may provide a partial solution. Indicted for crimes against humanity as far back as 1995, former Bosnian Serb political leader Radovan Karadzic has yet to stand trial before the U.N. war crimes tribunal. Yet in August 2000, a New York court found him liable for crimes against humanity. The jury awarded $745 million to 12 women who were raped and beaten by Serb forces in the former Yugoslavia.

The same pattern may play out in the new war on terrorism. As international forces scoured Afghanistan in December 2001 for Taliban supporters of al Qaeda, a Pakistani lawyer was serving the Taliban’s ambassador to Pakistan with a summons to appear in a Manhattan district court. Ideally, each country would have competent courts to enforce its own laws, and those laws would embody universal standards of human rights. Until they do, victims everywhere should enjoy maximum opportunity to recover whatever damages — or dignity — they can.