United States of America
Practice Relating to Rule 151. Individual Responsibility
Section B. Individual civil liability
The US Victim and Witness Protection Act (1982) provides:
(a) (1)(A) The court, when sentencing a defendant convicted of an offense … may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense …
(3) The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.
For cases where restitution is impossible, impractical or inadequate, especially in the case of an offence resulting in bodily injury, the Act provides for the possibility of the paying of an amount of money.
The US Alien Tort Claims Act (1789) 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 the United States”.
The US Torture Victim Protection Act (1991), under a provision entitled “Establishment of civil action”, states:
(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.
A provision of the California Code of Civil Procedure (1973), as amended, dealing with compensation for slave and forced labour states:
Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate.
In the Karadžić case in 1995, a US Court of Appeals considered a civil action brought by Bosnian victims of atrocities and their representatives against Radovan Karadžić under, inter alia, the US Alien Tort Claims Act. This Act “creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations” (or US treaty). The Court, considering the responsibility of Karadžić for genocide, rape, forced prostitution, torture and other cruel, inhuman and degrading treatment, summary executions and disappearances committed during the conflict in the former Yugoslavia, emphasized that individuals could be held responsible, both criminally, and, as in this case, civilly, for violations of international law. It further noted: “The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, and remains today an important aspect of international law.” It also stated:
The liability of private persons for certain violations of customary international law and the availability of the Alien Tort Act to remedy such violations was early recognized by the Executive Branch in an opinion of Attorney General Bradford … The Executive Branch has emphatically restated in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law.
The FIS case before a US District Court in 1998, in which a group of Algerian women sought compensation from a high-ranking official of the Islamic Salvation Front (FIS) for his participation in crimes against humanity, war crimes and various violations of human rights committed in Algeria, successfully relied upon the US Torture Victim Protection Act and the US Alien Tort Claims Act as a basis for the jurisdiction of US courts. With regard to the claim based on the Alien Tort Claims Act, the Court found that:
The alleged acts of the FIS are clearly in violation of international law as it stands today. Common Article 3 of the  Geneva Conventions … applies to “armed conflicts not of an international character” and protects civilians not participating in the conflict by requiring that they be “treated humanely, without any adverse distinction founded on race, color, religion, faith, sex, birth or wealth, or any other similar criteria”. It prohibits, among other things, “murder of all kinds, mutilation, cruel treatment and torture”, kidnapping, and summary executions. The Karadžić court held that Common Article 3 applies to all parties to a conflict, not merely to official governments. This Court concludes that the acts of the FIS alleged by Plaintiffs are proscribed by international law against other state and private actors, as evidenced by Common Article 3. Accordingly plaintiffs have properly alleged subject matter jurisdiction under the ATCA.
In a class action verdict in the Karadžić case
before a US District Court in 2000, Radovan Karadžić was sentenced to pay US$ 265 million in compensatory damages and US$ 480 million in punitive damages to the claimants.
In another verdict, Radovan Karadžić was sentenced to pay US$ 407 million in compensatory damages and US$ 3.8 billion in punitive damages. As acts for which the damages were owed, the Court, in the latest verdict, listed, inter alia
, rape and gang rape, forced pregnancy, sexual slavery, beating and other torture, genocide, war crimes, crimes against humanity, assault and battery, and disappearance of relatives.
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the District Court Northern District of Georgia found the defendant liable for: torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$140 million in damages. In its judgment, the Court stated:
Plaintiffs have shown that defendant Vuckovic acted with the intent required to establish that his acts constituted torture. Vuckovic’s anti-Muslim statements, and the entire context in which the beatings occurred, evidence the fact that the defendant beat and threatened plaintiffs for discriminatory reasons. Plaintiffs have also established that the acts of defendant Vuckovic were carried out with the intent of intimidating or terrorizing them because of their ethnicity, pursuant to the Bosnian Serb government’s campaign of ethnic cleansing.
Finally, the beatings carried out by Vuckovic and his accomplices were clearly perpetrated, instigated, and acquiesced in, by persons acting in an official capacity as part of the police or military forces of Republika Srpska. Vuckovic himself was a soldier in a unit tied to and supported by the Bosnian Serb and Serbian governments. He often carried out beatings with other soldiers. The beatings inflicted by Vuckovic all were committed in official or designated detention facilities, guarded by Bosnian Serb or Serbian police or soldiers. Without their permission or acquiescence, and that of those in the political and military hierarchy above him, Vuckovic could not have perpetrated abuses against plaintiffs. Plaintiff Subasic described frequently hearing guards scheduling beatings in advance. The fact that the beatings carried out by Vuckovic and others were routine, daily occurrences at these facilities also indicates that the beatings were, in fact, ordered, authorized, and perpetrated as part and parcel of official policy.
For these reasons, defendant Vuckovic is liable for torture under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)].
The TVPA [Torture Victim Protection Act of 1991] also provides a cause of action for official torture. The TVPA provides in relevant part:
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.
TVPA § 2(a).
As set out in the section above, defendant Vuckovic clearly committed abuses against plaintiffs under official authority. In light of the de facto governmental authority of the Republika Srpska
, under which Vuckovic served as a soldier, and the control exerted over it by the Serbian government, Vuckovic may be considered also to have been acting under the authority of a “foreign nation.” Kadic v. Karadzic, 70 F.3d at 244–46
Additionally, as the definition of torture under the TVPA closely follows the definition of torture under the Torture Convention in all relevant respects, for the same reasons as above, Vuckovic’s actions also constitute torture under the TVPA. Accordingly, defendant Vuckovic also is liable to plaintiffs for torture under the TVPA.
In 2009, in the Presbyterian Church of Sudan case, involving claims asserted under the Alien Tort Statute (ATS) (28 USC § 1350), the US Court of Appeals for the Second Circuit upheld the dismissal of the case by the District Court, finding that the plaintiffs had failed to establish the defendant’s purposeful complicity in genocide, war crimes and crimes against humanity against civilians living in southern Sudan. In its judgment, the Court of Appeals stated:
There is no allegation that [the defendant] (or its employees) personally engaged in human rights abuses; the allegation is that Talisman was complicit in the [Sudanese] Government’s abuses.
That allegation places in issue the standard for aiding and abetting liability under the ATS. [a footnote to this statement states: “We address aiding and abetting liability – a concept typically associated with the criminal law – because customary international law norms prohibiting genocide, war crimes, and crimes against humanity have “been developed largely in the context of criminal prosecutions rather than civil proceedings.” John Doe I v. Unocal Corp
., 395 F.3d 932, 949 (9th Cir. 2002)].
In further considering the standard for “aiding and abetting”, the Court stated:
[A]pplying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law, … no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law.
Indeed, international law at the time of the Nuremberg trials recognized aiding and abetting liability only for purposeful conduct. … That purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard. See Khulumani
, 504 F.3d at 276 (Katzmann, J., concurring) (noting that some international criminal tribunals have made overtures toward a knowledge standard but that the Rome Statute of the International Criminal Court adopts a purpose standard). … Only a purpose standard, therefore, has the requisite “acceptance among civilized nations,” Sosa
, 542 U.S. at 732, for application in an action under the ATS.
[emphasis in original]
In considering the standard for “conspiracy”, the Court stated:
Plaintiffs allege that [the defendant] conspired with the Government to commit human rights abuses and argue that the district court failed to apply conspiracy principles from United States law to violations of international law under the ATS. … Whether conspiracy claims are cognizable under international law is a question of first impression in this Circuit.
As a matter of first principles, we look to international law to derive the elements for any such cause of action. … In so doing, we must distinguish between the inchoate crime of conspiracy (which requires an agreement and overt acts, but no completed deed) and conspiracy as a theory of accessorial liability for completed offenses.
As to conspiracy as an inchoate offense, the Supreme Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 610 (2006), that “the only ‘conspiracy’ crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war.” Plaintiffs did not plead the waging of aggressive war, and while they did plead genocide, it is pled as a completed offense, not an inchoate one.
The analog to a conspiracy as a completed offense in international law is the concept of a “joint criminal enterprise.” See Hamdan
, 548 U.S. at 611 n.40. Even assuming, without deciding, that plaintiffs could assert such a theory in an ATS action, an essential element of a joint criminal enterprise is “a criminal intention to participate in a common criminal design.” Prosecutor v. Tadic
, Case No. IT-94-1-A, Appeal Judgment, § 206 (July 15, 1999) (basing that finding on numerous precedents from criminal tribunals established in the aftermath of World War II). Therefore, under a theory of relief based on a joint criminal enterprise, plaintiffs’ conspiracy claims would require the same proof of mens rea
as their claims for aiding and abetting.
[footnotes in original omitted]
In 2010, in the Kiobel case, brought under the Alien Tort Statute (ATS), 28 USC § 1350, the US Court of Appeals for the Second Circuit upheld the District Court’s dismissal of some of the plaintiff’s claims against the corporate defendants and reversed the same court’s decision not to dismiss the plaintiff’s remaining claims against the defendants, finding that corporations cannot be held liable for violations of customary international law. In its 2-1 decision, the Court of Appeals stated:
[T]he ATS provides jurisdiction over (1) tort actions, (2) brought by aliens (only), (3) for violations of the law of nations (also called “customary international law”) including, as a general matter, war crimes and crimes against humanity – crimes in which the perpetrator can be called “hostis humani generis, an enemy of all mankind.”
This case involves … [the] unresolved issue: Does the jurisdiction granted by the ATS extend to civil actions brought against corporations under the law of nations?
From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons – not “juridical” persons such as corporations – because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an “international crime” has rested solely with the individual men and women who have perpetrated it.
The defining legal achievement of the Nuremberg trials is that they explicitly recognized individual liability for the violation of specific, universal, and obligatory norms of the customary international law of human rights. In its judgment the Tribunal noted that the defendants had argued that “international law is concerned with the actions of sovereign states, and provides no punishment for individuals.” The Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int’l Military Trib. at Nuremberg 1946). The Tribunal rejected that view, however, declaring that “international law imposes duties and liabilities upon individuals as well as upon states” and that “individuals can be punished for violations of international law.” Id. (emphasis added).
[M]odern international tribunals make it abundantly clear that, since Nuremberg, the concept of corporate liability for violations of customary international law has not even begun to “ripen[ ]” into a universally accepted norm of international law.
[emphasis in original; footnotes in original omitted]
The Court concluded:
Acknowledging the absence of corporate liability under customary international law is not a matter of conferring “immunity” on corporations. It is, instead, a recognition that the States of the world, in their relations with one another, … have determined that moral and legal responsibility for heinous crimes should rest on the individual whose conduct makes him or her “hostis humani generis
, an enemy of all mankind.”.
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States stated:
With respect to Article 24 [of the 1993 ICTY Statute], it is our understanding that compensation to victims by a convicted person may be an appropriate part of decisions on sentencing, reduction of sentences, parole or commutation.
According to the Report on US Practice, it is the opinio juris
of the United States that “universal jurisdiction over war crimes applies not only to penal proceedings, but also to suits for damages against individual war criminals by or on behalf of their victims”.