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Time limitation under the United States Alien Tort Claims Act
Published online by Cambridge University Press: 25 February 2011
Extract
Victims of international law violations may bring civil actions for damages against the perpetrators under the United States Alien Tort Claims Act (hereafter ATCA). Lawsuits instituted pursuant to the ATCA may include claims based on violations of international humanitarian law but such claims are completely independent of prosecutions for war crimes or crimes against humanity that might arise from the same factual circumstances. Actions under the ATCA are not aimed at imposing penal sanctions but seek payment of monetary compensation by the defendant for the damage suffered by the victim.
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- Copyright © International Committee of the Red Cross 2003
References
1 28 U.S.C. § 1350 (1982). Unless stated otherwise, cited legislation is that of United States federal jurisdiction.
2 A good illustration of a violation of international humanitarian law held to be within the scope of the ATCA is found in Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995) (holding that the former Bosnian Serb leader may be liable under the ATCA for genocide, war crimes and crimes against humanity in his private capacity). See also Iwanowa v. Ford Motor Company and Ford Werke A.G., 67 F. Supp. 2d 424, p. 440 (D.C.N.J.) (holding that enslavement and deportation of civilian populations during World War II constitute a crime against humanity and as such is within the scope of the ATCA); Princz v. Federal Republic of Germany, 26 F.3d 1166, p. 1180 (D.C. Cir. 1994) (acknowledging that forced labour of civilians during World War II violated international law); and Siderman de Blake v. Republic of Argentina, 965 F.2d 699, p. 715 (9th Cir. 1992) (finding that “the universal and fundamental rights of human beings identified by Nuremberg – rights against genocide, enslavement, and other inhumane acts… are the direct ancestors of the universal and fundamental norms recognized as jus cogens” and as such they come within the ATCA).
3 See, for example, note 11 below.
4 672 F. Supp. 1531, p. 1549 (District Court, Northern District of California, 1987).
5 157 F. Supp. 2d 1345, p. 1363 (District Court, Southern District of Florida, 2000).
6 28 U.S.C § 1350.
7 281 F.3d 1004 (Court of Appeals, 9th Circuit, 2002). The decision in Papa was reaffirmed recently in the consolidated cases of Deutsch v. Turner Corporation, et al. and In re World War II Era Japanese Forced Labour Litigation, 317 F.3d 1005, p. 1028, n. 18 (Court of Appeals, 9th Circuit, 2003).
8 The current version of the ATCA-came into force in 1982. It was originally adopted as part of the Judiciary Act of 1789. Although the statute as now formulated consists of a text different from the 1789 statute to reflect changes in judicial structure and procedural modifications, there has been little substantive change between the two versions, which are separated in time by almost two hundred years. See Pryor, K.L., “Does the Torture Victim Protection Act signal the demise of the Alien Tort Claims Act?”, Virginia Journal of International Law, Vol. 29, 1989, p. 970Google Scholar. The original version provided: “And be it further enacted, that the district courts (c)… 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 tort only in violation of the law of nations or a treaty of the United States.”, Judiciary Act of 1789, Chapter 20, § 9, 1 Stat. 73, 77 (1789).
9 It was asserted 21 times during this period and only in two cases did a federal court accept jurisdiction over the claims brought pursuant to the ATCA. Randall, K.C., “Federal jurisdiction over international law claims: inquiries into the Alien Tort Statute”, New York Journal of International Law and Politics, Vol. 18, 1985, p. 4Google Scholar and Pryor, K.L., op. cit. (note 8), p. 974. One of the most frequent reasons for denial of asserted jurisdiction under the ATCA has been that the alleged conduct was insufficient to constitute a violation of international law as required by the statute. See Pryor, K.L, op.cit. (note 8), p. 989.
10 630 F.2d 876 (Court of Appeals, 2nd Circuit, 1980).
11 The Court of Appeals in Filártiga held that the ATCA provided jurisdiction for a tort claim to be brought by two Paraguayan nationals against a former Paraguayan chief of police in respect of the torture to death of a family member in Paraguay. In finding jurisdiction, the court found that:
“deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction.”
Filártiga v. Peña-Irala, Ibid. p. 878. On remand, the defendant took no further part in the proceedings and a default judgment of over USD 10.4 million was awarded against the defendant; 577 F. Supp. 860, p. 866. As is frequently the case with ATCA judgments, no enforcement of this award has been made. See Human Rights Watch, “Defend the Alien Tort Claims Act”, 29 July 2003, available at: <www.hrw.org/campaigns/atca>.
12 For example, in an amicus brief filed before the Federal Court of Appeals for the Ninth Circuit on 8 May 2003 in John Doe I, et al. v. Unocal Corporation, et al., Nos. 00–56603 and 00–56628, an appeal from the District Court for the Central District of California, the Department of Justice asserts that the ATCA “cannot properly be construed as a broad grant of authority for the courts to decipher and enforce their own concepts of international law” and seeks a much more restricted construction of the ATCA than adopted in Filártiga; see brief pp. 4–5, reprinted at <www.uscib.org/docs/unocal_us_amicus.pdf>. Such a position does not appear to have been taken by previous administrations.
13 See, for example, the decisions in Kadic v. Karadzic, op. cit. (note 2) and Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (Court of Appeals, 9th Circuit, 1996) (relating to torture and other abuses by the former President of the Philippines).
14 Section 2 of the TVPA states:
“(a) Liability. An individual who, under actual or apparent authority, or cotor 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.
(…)
(c) Statute of Limitations. No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.”
15 Papa, op. cit. (note 7), p. 1013.
16 See Stern, P.J., “Ninth Circuit finds 10-year statute of limitations applies to Alien Tort Claims Act”, April 2002, available at: <www.mofo.com/news/general>.
17 Papa, op. cit. (note 7), pp. 1011–1012, quoting North Star Steel Co. v. Thomas, 515 U.S: 29, 35, 132 L. Ed. 2d 27, 115 S. Ct. 1927 (1995).
18 Papa, op. cit. (note 7), p. 1012, quoting Pub. L. No. 102–256, 106 Stat. 73 (1992). It should be mentioned that in cases decided prior to 1991, courts did not have the benefit of utilizing the requisite “closer analogy” of the TVPA because it did not then exist.
19 For example, in Forti, op. cit. (note 4), p. 1549, the court adopted California's one-year statute of limitations for personal injury actions.
20 See: Collingsworth, T., “The key human rights challenge: developing enforcement mechanisms” in Harvard Human Rights journal. Vol. 15, 2002, p. 202Google Scholar, where Collingsworth states that in Doe v. Unocal Corp., 27 F. Supp. 2d 1174 (CD. Cal. 1999), “the plaintiff's lawyers were not able to travel to Burma to interview witnesses because they could not get visas. Even if they could have travelled to Burma, they would have risked arrest or physical harm.”
21 Papa, op. cit. (note 7), p. 1012.
22 See generally, Stern, P.J., op. cit. (note 16).
23 See, for example, Article 1 of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 25 November 1968, entered into force on 11 November 1970; Article 1 of the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes, 25 January 1974, entered into force on 27 June 2003; and Article 29 of the Statute of the International Criminal Court, 17 July 1998, entered into force on 1 July 2002. Despite the absence of the United States as a signatory to these instruments, they appear to evidence a rule of customary international law that statutory limitations periods are not applicable to war crimes and crimes against humanity. As regards recent State practice, it is noteworthy that on 21 August 2003, Argentina's Senate unanimously approved a bill to eliminate Argentina's statute of limitations concerning war crimes and crimes against humanity. Noted in American Society of International Law, International Law in Brief, 26 August 2003.
24 See note 2 above.
25 See, for example, the legal maxim interest republica ut sit fines litium (it concerns the interest of the State that there be an end to lawsuits).
26 For example, as far back as 1925, the Institute of International Law studied the subject of limitation of actions and concluded that: “Practical considerations of order, of stability and of peace, long accepted in arbitral jurisprudence, should include the limitations of actions for obligations between states among the general principles of law recognized by civilized nations, which international tribunals are called upon to apply.” Institute of International Law, “Limitations of actions in public international law”, reprinted in American journal of International Law, Vol. 19, 1925, p. 760Google Scholar. In this context, reference should be made to the mechanisms established for individuals to complain against States under three important United Nations human rights treaties in respect of which no express time limit within which to make a complaint is provided. Nonetheless, there are provisions in these treaties whereby communications may be inadmissible for unreasonable delay in submission if they are considered to be an “abuse of right”. See Article 3 of the 1966 Optional Protocol to the International Covenant on Civil and Political Rights, 18 December 1966; Article 4 of the 1999 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, 6 October 1999; and Article 22(2) of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984. Under the 1965 International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, exceptional circumstances aside, a communication of a violation of the Convention must be submitted within six months after all available domestic remedies have been exhausted pursuant to Rule 91(f) of the Rules of Procedure of the Committee on the Elimination of Racial Discrimination. Outside the UN human rights treaty system, the Eleventh Protocol to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 11 May 1994, enables States or individuals to apply to the European Court of Human Rights. However, this application must be filed within six months from the date when the relevant final decision was taken.
27 International Court of Justice, Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections), Judgment of 26 June 1992, ICJ Reports 1992 p. 240, para. 32. Extinctive prescription applies not just to inter-State disputes but also to claims by individuals against a State brought through means of diplomatic espousal. The principle is flexible and leaves much discretion with the adjudicator as to how it should be applied. Concerns as to the respondent's inability to collect sufficient evidence supporting a claim – evidence that may be lost or destroyed during the time that has elapsed – underlie the principle. Additionally, issues such as whether the delay was attributable to the claimant or whether it was beyond the claimant's control are also considered. Under the principle of extinctive prescription, the length of time after which a claim is deemed time-barred may be much longer than ten years. For example, in the Italian-Venezuelan Commission of 1903, the Tagliaferro decision allowed the presentation of a claim after a delay of 31 years, apparently because of notification of the claim to authorities of the respondent State immediately after the event in dispute; decision reprinted in Ralston, J.H., Venezuelan Arbitrations of 1903, Government Printing Office, Washington, 1904, p. 764Google Scholar. Similarly, see the Giacopini decision, where for similar reasons the same Commission accepted a claim that was 32 years old; decision reprinted in Ralston, J., Ibid., p. 765. Indeed, there have been international law cases where circumstances have demanded that delayed claims be disallowed for a period of delay much shorter than 10 years. See, for example, the Davis decision where the British-Venezuelan Commission of 1903 rejected the case for a delay in notice of two years; decision also reprinted in Ralston, J. Ibid., p. 406. See generally, King, B.E., “Prescription of claims in international law”, British Year Book of International Law, Vol. 15, 1934, p. 82Google Scholar; Ibrahim, A.R., “The doctrine of Laches in international law”, Virginia Law Review, Vol. 83, 1997, p. 647Google Scholar; and Weeramantry, J.R., “Extinctive prescription and delay in the presentation of international claims”, forthcoming article.
28 Forti, op. cit. (note 4), p. 1547.
29 Ibid., quoting Wilson v. Garcia, 471 U.S.C. 261, p. 271, 105 S.Ct. 1938, p. 1944.
30 Ibid., p. 1549.