Extending International Criminal Law beyond the Individual to ...

Extending International Criminal Law 905
United States Federal Courts has focused attention on the scope of complicity
in this context. The ATS confers upon the federal district courts original
jurisdiction over ‘any civil action by an alien for a tort only, committed
in violation of the law of nations’ (28 U.S.C. section 1350). But these cases
are riddled with complexity. In order to show that the corporation has committed
a violation of international law, it may be necessary to show that
there was a degree of state action or that the corporation acted under
‘colour of law’. As soon as the plaintiffs can show this, the defendants start to
argue that the courts should refuse to hear the case because there is too much
state action. Two separate arguments are emerging. The first concerns a ‘combatant
activities exception’. According to a recent ruling:
The policy underlying the FTCA’s [Federal Tort Claims Act] combatant activities exception is
that the military ought be ‘free from the hindrance of a possible damage suit’ based on its
conduct of battlefield activities. Johnson, 170 F.2d at 769. In this respect, the policy echoes
the Supreme Court’s admonition that ‘[i]t would be difficult to devise a more effective
fettering of a field commander than to allow the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts and divert his efforts and attention
from the military offensive abroad to the legal defensive at home.’ Johnson v. Eisentrager, 339
U.S. 763, 778 (1950). 20
As the claim is argued as a tort under the law of nations, claimants may need
to show state action or ‘official complicity’ in order to show that the acts were
violations of the law of nations. A second jurisdictional argument now appears.
At this point, jurisdictional blockers pop-up again in a rather paradoxical form.
The greater the official complicity, the harder will it be to avoid claims that the
case has to be dismissed on political grounds. In the words of Judge Robertson
in the same case concerning Abu Ghraib: ‘And the more plaintiffs assert official
complicity in the acts of which they complain, the closer they sail to the
jurisdictional limitation of the political question doctrine.’ 21
Let us, however, leave to one side the jurisdictional rules and concentrate on
some recent rulings concerning the scope of complicity in violations of international
criminal law in general, and in particular complicity in war crimes,
crimes against humanity and genocide.
It is perfectly possible to bring a suit against a corporation for violating
international law as the principal perpetrator, and suits have indeed been
brought, for example, with regard to allegations of violations of international
law, including torture and inhuman or degrading treatment, committed by
contractors providing interpretation and interrogation services to the United
States at Abu Ghraib prison in Iraq. 22 More recently a case has been filed also
20 Order of 6 November 2007, Ibrahim et al. v. Titan et al. andSalehetal.v.Titanetal., US District
Court for the District of Columbia, James Robertson US District Judge, Case 1: 05-cv-01165-JR,
at 7.
21 Order of 26 June 2006, Saleh et al. v. Titan Corp,436F.Supp.2d55,at5.
22 For the background, see the Order of 6 November 2007, Ibrahim et al. v. Titan et al. andSaleh
et al. v. Titan et al., supra note 21.