The Long Arm of International Law

By Pierre N. Leval

In late 1945, the Allied victors of World War II established a military tribunal in Nuremberg, Germany, which convicted Nazi leaders for their wartime atrocities. The animating principle of the trials was that conduct of extreme inhumanity violated the part of international law that protects fundamental human rights, which applies everywhere, even though the conduct was authorized by German law under the Third Reich. Since then, the world has accepted that the worst human rights abuses — including genocide, slavery, torture, and war crimes — are crimes prohibited by international law, even if they are expressly permitted by the laws of the state in which they occur.   Yet over 65 years after Nuremberg, although the world remains awash in these atrocities, the prohibitions of international law are largely toothless, especially when the abusive governments remain in power. The international community has established criminal tribunals to try abusers, but those who remain in power are ordinarily shielded from prosecution by their government and its protectors. Victims seeking recognition of the wrongs done to them and compensation for their suffering cannot get relief in their home countries, and they have practically no courts available to them elsewhere.

Since 1980, they have been able to turn to the United States. That year, a U.S. appeals court, invoking a previously obscure law known as the Alien Tort Statute (ATS), allowed U.S. federal courts to hear civil suits brought by foreign citizens against foreign defendants for crimes committed on foreign soil, provided that the defendant brought himself within the territorial reach of the court. The ATS offers victims of abuse a rare tool in their fight for justice; the United States remains the only country in the world to entertain such lawsuits. Now, however, the U.S. Supreme Court may slam shut the door on such plaintiffs, relying in part on the argument that other countries do not offer such relief. During proceedings held last year, the Court hinted that it may altogether ban ATS cases based on foreign abuses…

http://www.foreignaffairs.com/articles/138810/pierre-n-leval/the-long-arm-of-international-law