Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C.
Credit: Joe Ravi via Wikimedia Commons
On February 27, 2019, the United States Supreme Court held by a vote of seven to one that international organizations do not have absolute immunity from suit in U.S. courts. See Jam v. International Finance Corp., No. 17-1011, slip op. at 2 (U.S. Feb. 27, 2019). Rejecting the International Finance Corporation’s (IFC) argument that international organizations like the IFC maintain absolute immunity from suit in U.S. courts, the Court allowed a case alleging injuries from environmental pollution caused by a power plant that was funded and supervised by the IFC to proceed in a U.S. federal court. See id. at 1-2, 5-6. The Supreme Court held that international organizations are not immune from all suits, such as when those organizations are engaged in commercial activity. See id. at 4, 15. The Supreme Court’s decision now allows the case against the IFC to move forward in U.S. Federal Court in Washington D.C. Although the Supreme Court’s decision did not make a determination on the merits of the case, the Court’s holding opens the door in U.S. courts for other potential suits alleging wrongdoing committed by other international organizations. [Earthrights]
Arab Bank, the defendant in Jesner v. Arab Bank
Credit: jo.schz via Flickr
On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRC] See Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.
European Court of Human Rights
Credit: Adrian Grycuk via Wikimedia Commons
On March 15, the European Court of Human Rights (ECtHR) issued a landmark decision finding that States are not required to allow victims of torture to sue perpetrators in civil proceedings, in the absence of criminal proceedings, for compensation when the act of torture occurred outside of the territory of the State and the perpetrators are not nationals and are domiciled abroad. See ECtHR, Naït-Liman v. Switzerland [GC], no. 51357/07, ECHR 2018, Judgment of 15 March 2018, paras. 97, 217. Accordingly, the ECtHR Grand Chamber held that States are not obligated under international law to exercise universal civil jurisdiction over acts of torture. See id. at para. 203. Universal civil jurisdiction is the power of a domestic court to resolve claims for monetary compensation without there being any connection between the State where the case is brought and the underlying facts of the case. See id. at para. 177. Although the ECtHR recognized that States were obligated to exercise universal criminal jurisdiction over acts of torture, the ECtHR found that there was no similar obligation for civil claims that are wholly separate from a criminal proceeding. See id. at para. 97. This decision diverges from the position taken by the United Nations Committee against Torture (CAT) and various international human rights organizations, including Amnesty International, the International Commission of Jurists, Redress Trust, and the World Organization Against Torture. See id. at paras. 52-53, 161, 167-68. The CAT maintains that States are obligated to award reparations for acts of torture, even if the torture occurs outside of the territory of the State, and to ensure that civil liability and redress is “available independently of criminal proceedings.” See id. at paras. 52-53, 161, 167-68; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26. Read more
Members of the International Law Commission in 2013
Credit: UN Photo/Anne-Laure Lechat
During its 68th session, the International Law Commission (ILC) adopted an additional five draft articles for a possible international convention on crimes against humanity. The new draft articles address criminalization under national law, establishment of national jurisdiction, investigations and inter-State cooperation, preliminary detention, the obligation to extradite or prosecute, and treatment of alleged offenders. See International Law Commission, Sixty-eighth Session (2016). The ILC Special Rapporteur on Crimes against Humanity, Sean D. Murphy, submitted his second report to the ILC, in which he provides background on these topics and proposes the text of articles 5 through 10. See ILC, Second report on crimes against humanity by Sean D. Murphy, Special Rapporteur, UN Doc. A/CN.4/690, 21 Jan. 2016. The ILC provisionally adopted draft articles 1 through 4 at its 67th session. Since he began spearheading the ILC’s work in this area in 2014, Murphy has highlighted the importance of a convention on crimes against humanity to fill a gap in international criminal law by complementing the work of the International Criminal Court (ICC) on a national level. See, e.g., Sean Murphy, Toward a Convention on Crimes against Humanity?, La Revue des droits de l’homme, 7 (2015). Read more