Tort Liability for Human Rights Abuses by Prof. George Fletcher

 

 
October 31, 2008 (NEW YORK) – Columbia Law School professor George Fletcher’s new book Tort Liability for Human Rights Abuses advances a bold theory of using tort law, rather than the traditionally utilized criminal law, to fight human rights abuses worldwide. And, unlike criminal law, tort law makes compensatory damages possible for the victims. The lynchpin for Fletcher’s ideas lies in an act of U.S. Congress passed nearly 220 years ago – well before the United Nations General Assembly passed the Universal Declaration of Human Rights in 1948.

“This provision in the First Judiciary Act has created a unique version of universal jurisdiction – one you would never expect to find in the United States,” Fletcher said. “The term [universal jurisdiction] was probably unknown at the time and yet, today, the Alien Torts Claims Act [ATCA] of 1789 is probably the most effective instrument to correct the evil of human rights abuses in the world.”

To hold violators of human rights accountable for their actions, tort law holds several advantages over criminal law, said Fletcher, the Cardozo Professor of Jurisprudence and an expert on international criminal law, torts and the jurisprudence of war. Tort disputes can be abstracted from geography in a way that criminal cases cannot be, and this makes universal jurisdiction “a more compelling institution” in tort than in criminal law.

The prospect of large recoveries gives the engine of tort liability immense power. Fletcher said, “The incentives to sue large, solvent defendants for human rights abuses in violation of the ATCA are overwhelming.” 

Tort Liability for Human Rights Abuses begins with an historical analysis, showing how criminal law and tort law evolved to deal with similar problems and how the ACTA established the importance of tort law in international cases. The act has “evolved from a footnote to the Judiciary Statute of 1789,” said Fletcher, and it reflects America’s preference for tort law (rather than criminal law) in prosecuting human rights violators. The act provides that “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.”  

In addition, Fletcher’s text shows how torture cases such as Filartiga (1980) and Sosa (2004), the latter of which involved the U.S. Drug Enforcement Agency’s kidnapping of a Mexican citizen in a drug case, led to the reawakening of the ACTA.

The book then looks at the cutting-edge cases in tort liability, especially those involving liability for funding terrorism, and the remedies available, particularly the potential offered by the compensation chamber in the International Criminal Court. Fletcher also examined the possible commission of war crimes in the course of utilization of Agent Orange, as well as the theory of liability for aiding and abetting the U.S. military and other military forces when they commit war crimes. Fletcher wrote, “These cases represent the Alien Torts Claims Act of the future.”

 
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