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January 24, 2005


Suits against sovereigns

I wanted to bring our readers' attention to Opinio Juris, a new weblawg focusing on international law -- a topic underrepresented on the blogosphere. The blogs' contributors include Chris Borgen, a professor at St. John's, Peggy McGuinness, a professor at Missouri, and Julian Ku, a professor at Hofstra (Julian is a former law school classmate and housemate; see my reference here to his response to the Supreme Court's decision last summer on the Alien Torts Claims Act in Sosa v. Alvarez-Machain).

This weekend, Julian had a couple posts of interest:

Here, he refers to the Southern District's ruling dismissing civil suits against Saudi Arabia and various of its officials and subentities for the September 11 attacks, on sovereign immunity grounds. Alarmingly, however, the opinion "also casually endorsed the somewhat controversial 'aiding and abetting' theory of liability for violations of international law that is at the heart of many Alien Tort Statute lawsuits against corporations."

Here, he critiques international law guru John Norton Moore's recent column in Slate that attacks the D.C. Circuit for dismissing the claims of Gulf War POWs against the Iraqi government. Moore had compared the court's decision unfavorably to the Supreme Court's infamous Korematsu decision, which permitted the internment of Japanese-Americans during World War II (!?!). Moore also argued: "If the Court of Appeals decision stands in the Acree case, the consequences will be catastrophic. Future tyrants will hear the message, like a fire bell in the night, that the United States has little concern for its own POWs. Morale will decline in our armed forces as the reality sinks in that our government has sided with their torturers over them."

I have to agree with Julian that Moore's position is "wacky."

Moore in essence argues argues that America's military interests will be crippled by not allowing our soldiers to sue the governments we have fought. Hmmm... It seems to me that the survivors of the Bataan Death March suffered pretty darn badly; that they didn't have the right to sue the postwar Japanese government; and that our military has survived.

Although I fully sympathize with the victims' suffering, Julian has it right when he says: "[T]he possibility of such lawsuits against sovereigns has existed as part of U.S. law for exactly 8 years (whereas the Geneva Conventions have been around for decades). Rather, the traditional enforcement mechanism has been reciprocity: we promise not to abuse your soldiers if you promise not to abuse ours (and the converse: if you abuse our soldiers, its open season on yours). Or, perhaps less grimly, if you abuse our soldiers, we want, as part of the peace deal, that you turn over all people responsible for those actions and we'll put them on trial in front of our military commissions, put them in jail or execute them."

Similarly, though I sympathize with all 9/11 victims -- and I'm no fan of the Saudi government -- it seems to me that any effort to compensate the victims through these tort lawsuits is highly problematic.

To me, these "suits against sovereigns" represent just one more path down the road toward the "Rule of Lawyers." Our executive branch is vested with implementing foreign policy, along the broad contours of Congress's dictates. Rightly or wrongly, the elected branches have decided not to declare Saudi Arabia a state sponsor of terrorism. Should a court -- and a jury of 12 citizens -- be able to interfere with that considered opinion? When American troops are in harms' way in the neighboring country?

Note that I'm not arguing that 9/11 victims shouldn't be compensated for their losses -- but the federal government has already done that, generously, through the 9/11 Victims Compensation Fund. Nor am I arguing that Gulf War POWs shouldn't be helped or that perpetrators shouldn't be punished. But tort lawsuits are not the best way to achieve those goals -- and they seriously compromise the foreign policy powers rightly reserved to the executive and legislative branches.

Posted by James R. Copland at 04:27 PM | TrackBack (1)



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